СУДЕБНОЕ ПОЗНАНИЕ И ДОКАЗЫВАНИЕ ПО ДЕЛАМ ОСОБОГО ПРОИЗВОДСТВА

Abstract

The article analyzes the general theory of judicial knowledge and proof, its capabilities and implementation in the consideration and resolution of cases of special proceedings in civil, arbitration, administrative proceedings. The approaches to cognitive and evidentiary activities in controversial (claim) and indisputable (special) proceedings are compared. The author considers the original system of collecting, presenting and evaluating evidences, created in the field of voluntary jurisdiction in the countries of civil law, its advantages and disadvantages in comparison with the national tradition of the unity of legal regulation of judicial knowledge and proof. An overview of the current state of the doctrine and practice of proving in special proceedings is given, an opinion is expressed about the need to refine the general provisions on proving in special proceedings. The prospects for the normative establishment of the limits of judicial research in terms of the volume of facts and the depth of their knowledge are outlined. It is stated that in cases of special proceedings, the “standard of proof” has always been higher in comparison with cases of claim proceedings. A number of new rules for establishing the circumstances of cases and proving are proposed: the priority of direct personal perception of the judge in the cognition of facts that are important for the case before proving them; freedom of means of evidence – the ability to use information about the circumstances of the case without restrictions on its sources (means of proof); freedom in choosing the rules for extracting information from a source (means of proof); different regulation of the burden of confirmation and the burden of proof.