ПРИЗНАНИЕ ВИНЫ И ИСКА МОЛЧАНИЕМ В УГОЛОВНОМ И ГРАЖДАНСКОМ ПРОЦЕССАХ

Abstract

Introduction: over the years, there have been made attempts to consider the category of legal silence in the framework of substantive and procedural law and to determine those legal consequences that arise in the absence or presence of silence. This article compares favorably with all previous developments in its breadth and fundamental nature of the research into the legal essence of silence from the point of view of admission of guilt and a claim in procedural law. Purpose: to carry out a historical and comparative analysis of silence on the basis of works of foreign and domestic proceduralists, both those of the pre-revolutionary period, Soviet procedural law and modern legal scholars. Due to the fact that there are different approaches regarding the admission of guilt and its consequences, the institution of admission of guilt within the traditions of the Anglo-Saxon and continental systems was investigated to understand their causes. Methods: empirical methods of comparison, description, interpretation; theoretical methods of formal and dialectical logic; special scientific methods such as legal-dogmatic and the method of interpretation of legal norms. Results: the historical and legal analysis of the sought category of procedural silence showed that in the Anglo-Saxon system admission of guilt by silence is treated with caution; however, it remains possible for it to be considered an acceptable way of resolving a dispute. In the continental system, direct admission of guilt (as evidence) is not credible, nor is it considered the only evidence of guilt. Conclusions: in Armenian procedural law, there is a tendency for the legislator to recognize the facts of silence. It follows from a number of norms that ‘not challenging the facts’ was given legal meaning, and a fact can be not disputed through taking no action aimed at challenging it, that is, by silence. The Russian legislator establishes different approaches to regulating the process of recognizing facts that are not subject to proof in civil and commercial proceedings in the context of silence. In the latter, the non-dispute by the party of the requirements or objections of the other party, as well as the absence of disagreement, which can be found from the meaning of other evidence, is interpreted as a tacit (indirect) recognition of the fact.