ENSURING RIGHTS OF PARTIES TO A CIVIL CASE BY COURTS
AS ONE OF THE CONDITIONS OF JUSTICE EFFECTIVENESS
The notion "effectiveness" has the significance of a property ensuring success in attaining a desired objective. At the same time, attainment of an objective is an action aimed at receiving a definite positive result. Therefore, the "effectiveness" may also mean "efficacy" in achievement of the desired result". Hence, the conclusion may be made that the "effectiveness" being a functional and purposeful category is a basic category in studying the social results produced by one or another phenomenon in general and public and legal realia in particular, and that it (effectiveness) reflects the degree of realization of public expectations.
The above thesis is applicable to the analysis of the category of "effectiveness (producing desired results) of justice" in civil cases.
The effectiveness of justice is a complex category conditioned by a number of factors. Since the effectiveness of justice is an indicator of the quality of the latter, in defining the effectiveness of justice it is necessary to proceed from the essence of justice, which is (in general) nothing but actions of a court (a judge) aimed at attainment of objectives provided for by law.
The current law of civil procedure specifies that objective of justice in civil cases is protection of violated or challenged rights, freedoms, and legally protected interests of natural persons and legal entities, as well as rights and legally protected interests of the Russian Federation, its subjects, federal public authorities, public authorities of the subjects of the Russian Federation and local authorities, rights, freedoms, and legally protected interests of other subjects of civil, labor, administrative or other legal relations. Apart from the above objective of justice in civil cases, Art. 2 of the CCP of RSFSR stipulates that lawfulness and the law and order, prevention of offences, formation of respect towards a law and a court should be furthered by civil proceedings.
The purview of Art 2 of the CCP attests that justice in civil cases has multi-purpose character. It should be noted that in current circumstances the legislator recognizes protection of rights and freedoms of individuals and rights of parties to civil cases as the main objective of justice. Such conclusion follows from the manner the objectives of justice in civil cases are defined by the legislator and the sequence thereof in the above article of the CCP.
Since justice as a legal category has a multi-purpose character, it is hardly possible to speak about effectiveness of justice in general, i.e. to give a general definition of effectiveness of justice in civil cases. Nevertheless, such definition is suggested in jurisprudence. For example, in A.V.Tsikhotski' s opinion "the effectiveness of justice in civil cases is a capability (a property) of justice as a public activity undertaken by a court in a procedural form established by law in trial and adjudication of specific cases with subsequent delivery of lawful, grounded, and equitable rulings, to further attainment of socially significant objectives under certain circumstances". Without going into details of the analysis of the above definition of "the effectiveness of justice in civil cases", it should be noted that it has an abstract character and cannot serve as the basis for determination of the effectiveness or non-effectiveness of justice administered in a specific civil case.
The effectiveness of justice must be specific, i.e. must be applied to a specific individual/entity for whom justice administration in a civil case is an instrument of attainment of the expected goal provided for by law.
Since the main objective of justice is the discharge of a jurisdictional function by a court, i.e. the protection of violated or challenged rights, freedoms, and legally protected interests of natural persons and legal entities, it is necessary to determine effectiveness of justice with respect, first of all, to the parties to a legal conflict being the essence of a civil case.
The parties to a legal conflict to be settled by a court (a judge) are principal participants in a case. But in connection with consideration of the effectiveness of justice, noted is that the legislator attributes to the participants in a case such participants in civil proceedings who are not involved in a legal conflict, i.e. a prosecutor, public authorities, local authorities, organizations and individuals defending on their own behalf violated or challenged rights, freedoms, and legally protected interests of other persons (Art. 29 of the CCP). Such determination of the composition of participants in a civil case cannot be recognized as successful, since the above authorities, officials, organizations, and individuals are participants of civil proceedings, but do not participate in the legal conflict resolved by the court as its subjects.
The draft CCP of the Russian Federation to be introduced to the State Duma has excluded a prosecutor from the participants in a case. Such decision is justified. But the drafters, for some reason, have left among the case participants the persons resorting to a court to protect other persons' interests (Art. 36. of the Draft), although they, same as a prosecutor, are not parties to a legal conflict and civil proceedings.
Thus, the effectiveness of justice should be determined, first of all, when a court's principal - jurisdictional (right protecting) - function is discharged, and with respect to those participants of civil proceedings who are parties to a case, i.e. who are juridically, subjectively interested in the results of the proceedings. Only the parties, third persons, applicants, and interested persons in non-actionable cases should be attributed to such participants of civil proceedings, i.e. persons participating in a case.
The justice in a civil case acquires the feature of effectiveness if, as a result of a specific civil case trial, a judge delivers a lawful, grounded, and fair judgment. Attainment of such objective is ensured by procedural guarantees which represent juridical means fixed in the rules of the civil procedural law and designed to create at all stages of proceedings favorable conditions for unhampered exercise of procedural rights granted to participants of a case.
The current civil procedural law provides for the mechanism of guarantee of the parties' and third persons' legal rights, including guaranteeing normative basis and court activities. At the same time, it should be taken into account that enhancement of lawfulness in justice administration in civil proceedings, increase of the degree of guarantee of civil proceedings participants' legal rights depend not only on improvement of normative and legal rules but also on the active organizing activity of a court.
In the conditions when a new Russian state system and market economy are being formed, the problem of court activity in civil proceedings is solved otherwise. The substance of the principles of contentiousness and option has changed toward extension of the scope of their operation. This, in its turn, has entailed decrease of a court activity in civil proceedings. For example, a claimant's abandonment of a claim results unequivocally in termination of proceedings by the court (para 4, Art. 219 of the CCP), the court does not accept the respondent's allowance of the claim and does not approve the parties' agreement of a lawsuit if these are contrary to a law or violate the rights and legally protected interests of other persons (Part 1, Art. 34 of the CCP), in the court of cassation a judge verifies the lawfulness and justification of the judgment delivered by the court of original jurisdiction within the limits of the appeal (Art. 294 of the CCP).
With such approach to the significance of the court activity in civil proceedings, opinions were expressed on unreasonableness of preserving some of the procedural institutes such as, for example, the institute of replacement of an improper party.
The decrease of the court activity in civil proceedings will inevitably result in a situation when the courts fail to secure exercise by the case participants of their procedural rights granted by law. As a result, the objectives of justice will not be attained and the justice will fail to acquire the features of effectiveness.
That is why we should fully agree with A.V. Tsikhotski who presumes that "the court activity, its aspiration to discharge its duty of protection of a violated right should be preserved". Proceeding from the essence of the right of relief as the guarantee of proper exercise of legal rights, secured by the state and provided for the cases when the capability of a legal right to be exercised is distorted, A.V.Tsikhotski soundly suggests to recognize as one of the duties of justice discharged under special circumstances the protection of the right despite of an entitled person's will.
Therefore, the effectiveness of justice should be determined proceeding from its objectives, the duties of the court, and with respect to specific persons - beneficiaries of objectives of justice.
  The dictionary of synonyms of the Russian language. Sovetskaya entsiklopedia publishing house, Moscow, 1969. See Comments on the word "effective" - efficacious, successful, (p. 598) and to the word "efficacious" - see "effective" (p. 468).
  A.V. Tsikhotski, Teoreticheskie problemy effektivnosti pravosudiya po grazhdanskim delam (Theoretical Problems of Effectiveness of Justice in Civil Cases), Novosibirsk, Nauka, Siberian enterprise of the Russian Academy of Sciences, 1997, p. 143.
  A.V. Tsikhotski. The mentioned work. P. 152.
  The issue of classification of other participants of proceedings is not considered here as not related to the subject of this article.
  See: I.M. Zaitsev. Nado li zamenyat nenadlezhaschuyu storonu? (Is it Necessary to Replace an Improper Party?), in: Rossiiskaya yustitsiya (The Russian Justice). 1999, No. 8, p. 23.
  A.V. Tsikhotski, ditto, p. 159.
  A.V. Tsikhotski, ditto, p. 160