Потенциал использования судебной неустойки (астрента) в обеспечении исполнения обязанности по представлению истребуемых доказательств в цивилистическом процессе

Abstract

The presentation of evidence in civil proceedings is a subjective right of the persons involved in the case, however, the court is entitled (in civil proceedings — should be entitled) to demand evidence under threat of penalties. The subjects of punitive liability are both the persons involved in the case and other subjects who own the required evidence. However, a court fine as a measure of responsibility for failure to provide evidence is not always effective, which gives rise to a rare application of this measure in judicial practice. Requests for evidence are often not executed by the persons to whom they are addressed. The author proposes to establish a judicial penalty (astrent) as a measure of responsibility for failure to provide evidence, which is currently established for the case of non-execution of only the final judicial act. It is proved that the penalty, which is increasingly increasing as the procedural obligation is not fulfilled, will serve as a more effective incentive for the presentation of evidence. The proposed measure performs three functions: when it is established in case of possible non–presentation of the requested evidence, it has a preventive function; when it is applied for the fact of non–presentation of evidence, it has a liability measure function and a security function.