Принципы гражданского, арбитражного и административного судопроизводства: сравнительно-правовой аспект

Abstract

The similarity of tasks and methods of their resolution by the courts in the administration of justice in civil, arbitration and administrative proceedings presupposes the commonality and similarity of principles as the fundamental bases in the administration of justice. A comparative analysis of the first chapters of the Civil Procedure Code of the Russian Federation, the Commercial Procedure Code of the Russian Federation and the Administrative Procedure Code of the Russian Federation regulating the main provisions of civil, arbitration and administrative proceedings, shows the lack of proper uniformity and, as a result, of the continuity and logic in formulating the principles of the corresponding type of legal proceedings. The author analyzes such principles as the administration of justice by the court only; individual and collegial consideration and resolution of cases; the language of proceedings; publicity of the proceedings and its legality. The author pays attention to the gaps and other shortcomings in the legal regulation of the above principles and proposes a solution to the identified problems. The immediacy of the trial is the guiding principle in the examination of evidence and the establishment of circumstances of the case, since it determines the ways and means of the court’s perception of the evidentiary material. The significance of the principle of “immediacy of the trial” is that its observance during the trial guarantees the gaining of true knowledge of the facts that are important for the correct adjudication and resolution of the case. Therefore, the violation by the court of this principle may entail the cancellation of the judicial act on the grounds of its unreasonableness and (or) illegality. If we turn to the Codes governing civil, arbitration and administrative proceedings, there is an inconsistent, formal attitude of the legislators to one of the most important judicial principles. This is shown because in Chapter 1 of the “basic provisions” of the Civil Procedure Code of the Russian Federation there is no such a principle as “immediacy of the trial”. The existence in civil proceedings of such a phenomenon as “the immediacy of the court’s examination of the evidence available in the case” and “the immediacy of the trial” is mentioned only in Chapter 6 “Evidence and Proving” (Part 1, Article 67 of the Civil Procedure Code) and in Chapter 15 “Trial” (Part 1, Article 157 of the Civil Procedure Code). Unlike the Civil Procedure Code of the Russian Federation, the “immediacy of judicial proceedings” as a principle is enshrined in the special norms of Chapter 1 of the Administrative Procedure Code of the Russian Federation (Article 10) and the Commercial Procedure Code of the Russian Federation (Paragraph 6, Article 6 and Article 13), which only declare, but do not disclose the substantive side of this judicial principle. Based on the above, we propose the following. First, supplement Chapter 1 of the Civil Procedure Code with a special provision providing for the principle of immediacy of judicial proceedings; second, to expand the content of Article 10 of the Administrative Procedure Code and Article 13 of the Commercial Code of the Russian Federation by the following wording: “1. The court, when adjudicating the case, must examine all the evidence in the case directly. 2. Evidence in a case shall be examined and evaluated by the court that must decide the case on the merits. 3. Evidence that was not the subject of examination at the court hearing may not be accepted by the court as the basis for the adopted judicial act.” The author declares no conflicts of interests.