An Experiment in Civil (Arbitrazh) Proceedings

Abstract

There is no mention of a forensic experiment in the Code of Civil Procedure of the Russian Federation and the Arbitration Procedure Code of the Russian Federation. But the study of judicial practice in civil cases shows a very frequent use of experimental research by the court. Through the prism of the norms of the current legislation and the established law enforcement practice, the use of experimental research in the civil law process is analyzed, the fundamental basis for the legal regulation of the judicial experiment is determined. One of the research methods by which an expert comes to certain conclusions is an expert experiment, the results of the experiment in this case are mediated by the expert’s conclusion. However, experimental studies can also be carried out under the auspices of the court directly in the court session. Examples of such use from current judicial practice are given. Based on the approaches existing in science, a theoretical conclusion is made about the dual nature of the phenomenon of evidentiary activity under consideration: forensic and forensic experiments are ways (methods) of research (verification) of forensic evidence: as personal — explanations (testimony, conclusions, consultations) of the subjects of evidentiary activity, as well as substantive evidence. At the same time, experimental studies also act as ways (methods) of forming such forensic evidence as an expert opinion. For civil (arbitration) cases, it is necessary to create a scientifically based legal model for conducting a judicial experiment, built on the principles of civilistic competition and optionality. This is supported by the experience of using the judicial experiment both in Russian judicial practice and in the post-Soviet legal space (in particular, the experience of using experimental studies in the Republic of Belarus).