Release:
2020, Vol. 6. № 4 (24)About the authors:
Nadezda V. Sukhova, Cand. Sci. (Jur.), Associate Professor, Department of Civil Law and Process, University of Tyumen; SPIN: 7968-0050; Scopus AuthorID: 522547; WoS ResearcherID: I- AAH-1441-2020; n.v.sukhova@utmn.ruAbstract:
This article examines the approach of legal science and law enforcement to the issue of abuse of rights. The authors emphasize that the reform of procedural legislation in the first two decades of the 21st century corresponds to the tendencies of internationalization of the civil process, within the framework of which the principle of accessibility of justice in its true understanding as a legal value is concretized. In this sense, the authors state that the abuse of the right to sue is one of the most important problems of civil procedural law, requiring a solution in order to increase the fairness and efficiency of national legal proceedings.
The analysis of a passive procedural position is carried out in the path of abuse of law. The authors acknowledge that, in connection with the COVID-19 pandemic, the need to severely punish dishonesty of the parties in court in order to promote good faith in civil proceedings is a response to the established jurisprudence. In addition, this article draws attention to the fact that the most important problems today are related to the improvement of mechanisms for encouraging the execution of procedural laws and rules of civil proceedings, and not just the system of punishment for dishonest behavior. This formulation of the practical problem determines the research methodology. According to the authors, the solution of serious problems associated with the dishonesty of the parties should be based not only on a theoretical (and monistic) approach, but on a pluralistic and communicative approach. And in this sense, this study is new.
This article concludes that the failure of the procedural theory in the study of the phenomenon of abuse of rights and the explanation of conscientiousness in the civil proceedings is a fact of scientific development, subject to methodological research — a methodological assessment of this fact; the question arises about the essence of the phenomenon; special purposes of civil procedure — the directions of development of procedural law inevitably give rise to their own legal interpretations, in particular, this is observed in the case of assessing the good faith in the judicial proceedings for purposes of other branches of law.
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References:
Alekseev A. A. 2017. “Right abuse in civil proceedings of Russia”. Bulletin of YuUrGU. Series: Law, no. 1, pp. 51-55. [In Russian]
Bolovnev M. A. 2018. “Effectiveness of combating abuse of procedural rights”. Cand. Sci. (Jur.) diss. Omsk. 234 pp. [In Russian]
Brehm W. 2016. “Own grading system in civil procedure (from the “Introduction to the commentary of the Civil procedure code of Germany” edited by Stein/Jonas. 22 edition. 2013)”. Herald of Civil Procedure, no 4, pp. 187-197. [In Russian]
RF Civil Procedure Code of 14 November 2002 No. 183-FZ (as of 31 July 2020). In: Sobranie zakonodatelstva RF, no. 46, art. 4531. [In Russian]
Gribanov V. P. 2001. Limits of Exercise and Protection of Civil Rights. Moscow: Statut. 411 pp. [In Russian]
Gun Nan. 2020. “New trends and features of the development of the civil procedure law system in China”. Bulletin of Saint Petersburg University. Law, no. 11 (1), pp. 192-206. [In Russian]
Carbonnier J. 1986. Sociologie juridique. Moscow: Progress. 352 pp. [In Russian]
Lebedev M. Iu. 2020. “The diffusion of the civil law principles in civil procedure law (the case of the principle of good faith)”. Herald of Civil Procedure, no. 3, pp. 244-260. [In Russian]
Permyakov A. V., Kirillov D. A. 2019. “International model approach to the distinction between conscientiousness and innocence in Russian civil law”. Tyumen State University Herald. Social, Economic, and Law Research, vol. 5, no. 2, pp. 155-170. DOI: 10.21684/2411-7897-2019-5-2-155-170 [In Russian]
Petrazycki L. I. 2000. Theory of Law and State in Connection with the Theory of Morality. Saint Petersburg: Lan. 608 pp. [In Russian]
RF Supreme Court Decree of 23 June 2015 No. 25. Byulleten Verkhovnogo suda Rossiyskoy Federatsii, no. 8. 48 pp. [In Russian]
RF Constitutional Court Decree of 16 November 2018 No. 43-P. Sobranie zakonodatelstva RF, art. 7492. [In Russian]
RF Constitutional Court Decree of 17 october 2017 No. 24-P. Sobranie zakonodatelstva RF, no. 44, art. 6569. [In Russian]
Chestnov I. L. (ed.). 2016. Post-Classical Ontology of Law. St. Petersburg: Aleteya. 688 pp. [In Russian]
Ryazanovsky V. A. 2005. Unity of the Process. Moscow: Gorodets. 80 pp. [In Russian]
Sakhnova T. V. 2020. “On the reform of civil procedure in 2018-2019: a view from above”. Herald of Civil Procedure, no. 3, pp. 12-29. [In Russian]
Sukhova N. V. 2015. “Double standards of modern procedural jurisprudence and their associated changes in the field of dispute resolution”. Herald of Omsk University. Series “Law”, no. 2 (43), pp. 176-191. [In Russian]
Tretyakova T. O. 2018. “Problems of abuse of procedural law in civil and arbitration proceedings”. Baltiyskiy gumanitarnyy zhurnal, no. 2 (23), pp. 418-420. [In Russian]
Tumanov D. A. 2020. “Some reflections on justice and optimization of legal proceedings”. Zakony Rossii, no. 8, pp. 3-17. [In Russian]
Yudin A. V. 2009. “Abuse of procedural rights in a civil proceeding”. Dr. Sci. (Jur.) diss. abstract. Saint Petersburg. 47 pp. [In Russian]
Van Rhee C. H., Fu Yulin. (eds.). 2014. Civil litigation in China and Europe: Еssays on the role of the judge and the parties, Dordrecht: Springer; Beijing: China-EU School of Law. 359 pp.
Nylund A. 2018. “The structure of civil proceedings — convergence through the main hearing model?”. Civil Procedure Review, vol. 9, no. 2, pp. 13-39. Accessed 15 August 2020. https://civilprocedurereview.com/blog/editions/the-structure-of-civil-proceedings-convergence-throug...
Report from the Transnational Civil Procedure — Formulation of Regional Rules. ELI-UNIDROIT Rules of Transnational Civil Procedure to European Rules of Civil Procedure Steering Committee and Working Group Joint Meeting. Rome, 9-10 April 2018. https://www.unidroit.org/english/documents/2018/ study76a/s-76a-08-e.pdf
Uzelac A., Van Rhee C. H., Cornelis Hendrik (Remco). (eds.). 2018. Transformation of Civil Justice: Unity and Diversity, Cham: Springer. 420 pp.
Weiping Z. 2019. “Changes of civil litigation system since the reform and opening up”. Rén mín jiǎn chá, no. 2, pp. 33-40. [In Chinese]
