ABOUT JUDICIAL DISCRETION AT CONSIDERING PERIOD DETERMINATION OF THE CASE BY COURT IN CIVIL PROCEEDINGS

2019 ◽  
pp. 89-98
Author(s):  
Aleksandr Dmitriyevich Zolotukhin ◽  
Lyudmila Anatolyevna Volchikhina
Keyword(s):  
Judicial Review ◽  
Judicial Discretion ◽  
Procedural Law ◽  
Civil Proceedings ◽  
Civil Cases ◽  
The Right ◽  
Judicial Protection ◽  
Proper Consideration

In civil proceedings, the legislator defines two conditions that ensure the process of judicial review and resolution of cases: the condition for proper consideration, resolution of civil cases and the condition for timely consideration and civil cases resolution. Proper consideration and resolution of cases involves compliance with the substantive and procedural law requirements. Timely consideration and resolution of cases involves compliance with the court terms of their consideration and resolution. Each of these conditions ensures the right of the persons concerned to judicial protection. Examining these conditions compliance process, we came to the conclusion that the fulfillment by the judge of the condition of compliance with the terms consideration and cases resolution for which he bears disciplinary responsibility, is achieved by his failure to meet the conditions of proper consideration and resolution of cases in terms of compliance with the procedural rules of their consideration and resolution, which entails violations of the right of interested persons to judicial protection. To solve this problem, we propose in civil proceedings to give the court the right to determine the period of consideration of the case at its discretion, based on the criteria of its reasonableness determined by the legislator.

The value, concept and essence of appeal proceedings in civil cases

2020 ◽  
pp. 523-529
Author(s):  
Liliya Usich
Keyword(s):  
Human Rights ◽  
Knowledge Based ◽  
Civil Proceedings ◽  
High Prevalence ◽  
Domestic Legislation ◽  
The Russian Federation ◽  
Civil Cases ◽  
Judicial Errors ◽  
The Right ◽  
Judicial Protection

This work is devoted to identifying the significance of the appeal proceedings in civil cases. We emphasize that the right to judicial protection is one of the fundamental human rights. To achieve this goal, we set the following tasks: define the concept of appeal proceedings; characterize the essence of the appeal proceedings in civil cases. In the course of studying the issue, we use the methods of scientific knowledge, based on the results of which the appropriate conclusions are drawn: despite the wide recognition of the appeal proceedings in the Russian Federation, we note the need to improve the efficiency of this institution due to certain omissions in the legislation. As a result, we define what should be understood as an appeal – consideration of cases that have not entered into legal force. By virtue of this, the importance and significance of the appeal proceedings as an appeal tool, as well as the direct correction of judicial errors, is noted both by the norms of domestic legislation and by international human rights bodies. The indicated gaps in the legislation show the absence of clearly defined boundaries, which creates problems in determining the value and essence of the appeal proceedings both at the theoretical and practical levels. In particular, there is a controversy on the appeal proceedings’ importance. However, the doctrine identifies two main elements, the essence of the appeal proceedings is: 1) the repetition of the case; 2) verification of the judicial act. Nevertheless, despite the high prevalence of appeals in civil proceedings, the issue of improving the effectiveness of this institution is still relevant, which leads to the inefficiency of civil proceedings in general.

The Problem of the Right to Trial: The Theory and Practice of Dualism and Interaction between Substantive and Procedural Law

2021 ◽  
Vol 16 (12) ◽  
pp. 79-97
Author(s):  
E. E. Uksusova
Keyword(s):  
Theory And Practice ◽  
Regulation Mechanism ◽  
Legal Proceedings ◽  
Procedural Law ◽  
Legal Relationship ◽  
Civil Proceedings ◽  
Administration Of Justice ◽  
The Right ◽  
Judicial Protection

Continuing the study of specialization of Russian civil procedural law, the author, based on the invariable perspective of its action, namely: a standardized court procedure of civil proceedings in administration of justice in a certain civil case and protection of the right, dwells on certain issues of its structural and functional characteristics — classification of procedural norms, mechanism of procedural regulation, mechanism of procedural legal relationship, etc. Through the context of the principle of dispositiveness, when clarifying the scope of its action and content as the legal beginning of legal proceedings (its leading element is the right to trial leading to the interaction of substantive and procedural law in the course of judicial protection of the right), the author analyzes and reveals the content, substantiates connections and relations between various interdisciplinary phenomena of law (a claim, the right to claim, etc.). The latest jurisprudence illustrates the importance of the conceptual legal apparatus for the development of legal science, law and improvement of its implementation in the Russian legal order.

scholarly journals PECULIARITIES OF CONSIDERATION OF CIVIL ACTIONS ON THE PROTECTIONOF THE RIGHTS OF THE PHYSICAL PERSON OF THE SUSTAINED DEFINITION OR DAMAGE TO HEALTH WORKING UNDER THE LABOR CONTRACT

2018 ◽  
Vol 64 ◽  
Author(s):  
N.M. Yasynok ◽  
V.O. Kapustian
Keyword(s):  
Judicial Review ◽  
Case Presentation ◽  
Employment Contract ◽  
Labor Contract ◽  
Procedural Law ◽  
Specific Category ◽  
General Rules ◽  
Legislative Framework ◽  
Civil Cases ◽  
The Right

The article is devoted to the analysis of the features of the procedural judicial review of civil cases on the protection of the rights of an individual injured or injured while working under an employment contract in accordance with civil procedural law. Analyzed the legislative framework, enshrined the right of a citizen to compensation for injury due to injury or damage to health working under an employment contract. It is determined that disputes about the amount of damage and the right to compensation for it are considered by courts in the lawsuit proceedings according to the general rules. It has been established that when considering civil cases for compensation for injury due to injury or damage to health, working under an employment contract, there are certain peculiarities regarding the jurisdiction of cases, involvement of third parties to the case, presentation of evidence and subject of proof, which is due to the specific category of cases.

scholarly journals Access to Court as a Determinative Procedural Act for the Exercise of Justice and Protection of Rights in Civil Cases (The Beginning)

2020 ◽  
Vol 15 (12) ◽  
pp. 90-108
Author(s):  
E. E. Uksusova
Keyword(s):  
Constitutional Rights ◽  
Law System ◽  
Procedural Law ◽  
Current State ◽  
Civil Cases ◽  
Legislative Reforms ◽  
The Right ◽  
Judicial Protection ◽  
Procedural Rights ◽  
Right Of Access

The author, following the focus of the study on specialization of civil procedural law in the Russian legal system as manifested regularity of its development, relying on the inevitable dualism and interaction between material and procedural law, comprehends its current state on the example of certain basic procedural and legal institutions: the institution of the right of access to court, the institution of protection of the rights and interests of other persons, the institution of jurisdiction, etc. The analysis caried out within the framework of the study takes into account the Russian legislative reforms undertaken in recent decades. The author’s use of known and proposed legal constructions, categories and concepts in the author’s combination and (or) interpretation makes their research urgent for the purposes of understanding of the key conditionality of civil procedural law specialization in the Russian law system as providing them with the administration of justice and protection of rights in civil cases in compliance with their wide understanding when the right to judicial protection in the system of constitutional rights and freedoms constitutes a guarantee for all of them. This paper is the first in a series of three papers devoted to the problem of the right of access to court as the most important issue of dualism and interaction between material and civil procedural rights.

scholarly journals Access to Court as a Determinative Procedural Act for the Exercise of Justice and Protection of Rights in Civil Cases (Part 2)

2021 ◽  
Vol 16 (1) ◽  
pp. 99-110
Author(s):  
E. E. Uksusova
Keyword(s):  
Constitutional Rights ◽  
Law System ◽  
Procedural Law ◽  
Current State ◽  
Administration Of Justice ◽  
Civil Cases ◽  
The Right ◽  
Judicial Protection ◽  
Procedural Rights ◽  
Right Of Access

The author, following the focus of the study on specialization of civil procedural law in the Russian legal system as manifested regularity of its development, relying on the inevitable dualism and interaction between material and procedural law, comprehends its current state on the example of certain basic procedural and legal institutions: the institution of the right of access to court, the institution of protection of the rights and interests of other persons, the institution of jurisdiction, etc The author’s use of known and proposed legal constructions, categories and concepts in the author’s combination and (or) interpretation makes their research urgent for the purposes of understanding of the key conditionality of civil procedural law specialization in the Russian law system as providing them with the administration of justice and protection of rights in civil cases in compliance with their wide understanding when the right to judicial protection in the system of constitutional rights and freedoms constitutes a guarantee for all of them. This paper is the second in a series of three papers devoted to the problem of the right of access to court as the most important issue of dualism and interaction between material and civil procedural rights.

scholarly journals The disposition principle in civil proceedings

2021 ◽  
pp. 72-81
Author(s):  
Anna Shtefan
Keyword(s):  
Subject Matter ◽  
Third Party ◽  
Legal Representative ◽  
Procedural Law ◽  
Ability To Act ◽  
Civil Proceedings ◽  
The Subject ◽  
Civil Cases ◽  
The Right ◽  
Procedural Rights

Shtefan A. The disposition principle in civil proceedings. The disposition (from the Latin «dispono» — to dispose) in the most general sense in the legal context means the ability to act at own discretion, to independently choose the direction of their behavior within the limits established by law. In different branches of law, the disposition has its own specific features but its basis is always that the subject of the relevant legal relationship is endowed with a certain freedom of choice in the exercise of their rights and independently disposes of them.The dispositive nature of civil proceedings has the following elements:1) civil proceedings in the case are based on the fact that its occurrence is possible only by virtue of the application of the person concerned to the court. The only grounds for initiating proceedings in the case is the submission of the application of the interested person in accordance with the requirements established by lawand in accordance with the procedure established by law;2) the court considers civil cases within the requirements stated in the case which include the requirements stated in the main claim, in a counterclaim, and in a third party claim; 3) consideration of civil cases is carried out solely on the basis of evidence submitted by the parties to the case or required by the court in cases provided by law. The main burden of filling the case with evidence rests with the parties to the case, and the court assists them in obtaining evidence by demanding it only in casesestablished by law;4) the party to the case, as well as the person who has legal capacity and in whose interests the claim is filed, disposes of their rights in relation to the subject matter of the dispute at their own discretion. This rule covers only procedural, not substantive rights, and applies only to rights relating to the subject matter of the dispute. In addition, the possibility of discretion of the party to the case in relation to their procedural rights on the subject matter of the dispute is allowed to the extent provided by procedural law;5) the court engages the relevant body or person that has the right to protect the rights, freedoms, and interests of others if the actions of the legal representative are contrary to the interests of the person he represents. In case of discrepancy between the interests of this person and the actions of his legal representative, the court is authorized to involve a body or person who is legally entitled to protect the rights, freedoms, and interests of others to participate in the case;6) the collecting of evidence in civil cases is not the obligation of the court except in cases established by procedural law. The court should not act in this direction instead of an inactive party to the case; the mandatory authority of the court to collect evidence is due to the direct indication of in which cases and what evidence is collected by the court itself;7) the court has the right to collect evidence relating to the subject matter of the dispute on its own initiative only in cases where it is necessary to protect minors or minors or persons who have been declared incompetent or whose capacity is limited, as well as in other cases provided by procedural law.The disposition as a basis of civil proceedings determines the only possible condition for the process of consideration of the case — the application of the interested person to the court, the limits of consideration of the case — stated by the interested person requirements, the basis of the case — evidence submitted by the parties or demanded by the court. The disposition also means the freedom of the party to dispose of their procedural rights in relation to the subject matter of the dispute, the absence of any obstacles to the implementation of such an order at its discretion. This freedom is not absolute and it has the statutory limits. Such limits are necessary for the effective functioning of the civil procedural form, in particular, the observance of reasonable time limits for civil cases and the prevention of abuse of procedural rights.Key words: disposition, disposition principle, civil proceedings

BASIC GUARANTEES FOR THE PROTECTION OF RIGHTS AND FREEDOMS BY MEANS OF CIVIL PROCEEDINGS

2020 ◽  
Author(s):  
Мадина Алиевна Умарова
Keyword(s):  
Civil Procedure ◽  
Fundamental Rights ◽  
Procedure Code ◽  
Civil Proceedings ◽  
Civil Cases ◽  
Fundamental Rights And Freedoms ◽  
The Right ◽  
Judicial Protection

Право на судебную защиту закреплено в нормах процессуального законодательства в отношении правосудия по гражданским делам. Судебное разрешение гражданско-правовых споров регулируется нормами Гражданского процессуального кодекса. В данной статье анализируется содержание института защиты основных прав и свобод посредством гражданского судопроизводства. The right to judicial protection is enshrined in the norms of the procedural legislation in relation to justice in civil cases. Judicial resolution of civil disputes is regulated by the norms of the Civil Procedure Code. This article analyzes the content of the Institute for the Protection of Fundamental Rights and Freedoms through civil proceedings.

scholarly journals The extension of the period of judicial proceedings in civil cases

2020 ◽  
pp. 79-83
Author(s):  
Tatiana Solovyeva
Keyword(s):  
Russian Federation ◽  
Civil Procedure ◽  
Civil Proceedings ◽  
Judicial Proceedings ◽  
The Russian Federation ◽  
Civil Cases ◽  
The Right ◽  
Judicial Protection

The article is devoted to the study of the peculiarities of the implementation of the right to extend the term of the trial in the consideration and resolution of civil cases. In general, this right is evaluated positively by the author, since it is aimed at meeting the terms of civil proceedings. However, there are some negative aspects of the exercise of the right to prolong the trial. It is concluded that it is necessary to make additions to part 6 of article 154 Code of civil procedure of the Russian Federation in order to ensure effective judicial protection.

NEW CLASSIFICATION OF PRINCIPLES OF CIVIL PROCEDURE

2021 ◽  
Author(s):  
Тимур Султанович Габазов ◽  
Амир Ахметович Мужахаев ◽  
Аминат Аслановна Солтамурадова
Keyword(s):  
Civil Procedure ◽  
New Classification ◽  
Procedural Law ◽  
Civil Proceedings ◽  
Key Factor ◽  
The Subject ◽  
The Right

В представленной статье кратко раскрывается смысл понятия такого явления, как принцип гражданского процессуального права, а также дана классификация принципов, уже существующих и утвердившихся в теории гражданского процесса. Авторы работы предприняли попытку разработать новую классификацию принципов гражданского судопроизводства, отличную от общепринятой, в которой ключевым фактором выступает субъект, которому эти принципы адресованы по своему содержанию. По результатам проведенного исследования выделены субъекты, которым адресованы действия этих принципов: адресованные только суду; адресованные только лицам, участвующим в деле; - адресованные всем субъектам гражданского судопроизводства в целом (общие). Можно вполне обосновано сказать, что новая классификация принципов гражданского процесса, в зависимости от субъекта имеет право на существование. The presented article briefly reveals the meaning of the concept of such a phenomenon as the principle of civil procedural law, and also gives a classification of the principles that already exist and are established in the theory of civil procedure. The authors of the work attempted to develop a new classification of the principles of civil proceedings, different from the generally accepted one, in which the key factor is the subject to whom these principles are addressed in their content. According to the results of the study, the subjects to whom the actions of these principles are addressed: addressed only to the court; addressed only to persons participating in the case; - addressed to all subjects of civil proceedings in general (general). It can be reasonably said that the new classification of the principles of civil procedure, depending on the subject, has the right to exist.

4. Overriding Objective and Human Rights

2021 ◽  
pp. 32-47
Author(s):  
Stuart Sime
Keyword(s):  
Human Rights ◽  
Family Life ◽  
Freedom Of Expression ◽  
Civil Procedure ◽  
Fair Trial ◽  
Civil Litigation ◽  
European Convention ◽  
Procedural Law ◽  
Civil Proceedings ◽  
The Right

This chapter discusses the sources of procedural law, the general principles relevant to civil procedure established by the overriding objective, the European Convention on Human Rights, and some rules on how the courts approach construing the Civil Procedure Rules 1998 (CPR). The CPR and practice directions (PDs) are the procedural rules governing civil proceedings. The most important rule is the ‘overriding objective’ of dealing with claims justly and at proportionate cost. The most important Convention rights in civil litigation are the right to a fair trial, the right to respect for private and family life, and the right to freedom of expression.

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