Conciliation Procedures Research Articles

Institution of Conciliation Procedures in the Russian Federation: Problems of Doctrine and Law Enforcement

The judicial system is experiencing an increase in the workload in almost all countries due to the increase in the number of cases being considered, which certainly affects the quality of the administration of justice. In 2019, about 19 million cases in Russia were considered in the courts, with a population of about 140 million. In such circumstances, increasing the staff of the judicial staff is costly for the budget and senseless, which means that it is necessary to implement various conciliation procedures in the Russian legal system. Russia adopted a law in 2019 that establishes the institution of pre-trial and judicial reconciliation, but its effectiveness is almost zero. The authors analyze the epistemological essence of conciliation procedures and their applied significance at the doctrinal level in this article. Methods: the disclosure of the topic was carried out from the standpoint of general scientific methods (sociological, systemic, structural-functional, historical), the method of theoretical analysis, private scientific methods (comparative jurisprudence, technical and legal analysis, concretization, interpretation). The methodological basis of the study was the method of the theory of knowledge. The purpose of the study: To determine the essence of such categories as conciliation procedures; alternative dispute settlement procedures; pre-trial, out-of-court, and judicial dispute settlement procedures; to identify the relationship between conciliation procedures and civil proceedings; to determine the reasons for the low effectiveness of the use of conciliation procedures in Russia. Results: the gnoseological essence of conciliation procedures was revealed; their relationship with alternative dispute settlement procedures, the relationship between conciliation procedures and the civil procedure was shown, the reasons for the low efficiency of the application of conciliation procedures in Russia were revealed.

НОВЫЙ ПОДХОД ПРИ РАСПРЕДЕЛЕНИИ СУДЕБНЫХ РАСХОДОВ ПО ДЕЛАМ ОБ ОСПАРИВАНИИ РЕЗУЛЬТАТОВ ОПРЕДЕЛЕНИЯ КАДАСТРОВОЙ СТОИМОСТИ

This study is determined by the theoretical and practical interest in the study of issues related to the protection of the rights of participants in transport obligations. The need for research is dictated by the direct needs of the subjects of the relevant legal relations in the actual exercise of rights, as well as in connection with the search for the most effective use of existing civil law forms of protection of violated rights of participants in transport obligations. Turning to general theoretical problems, in particular, to the concept of protection of rights, it is concluded that this is common to civil law and civil procedure. The authors state that the specifics of transport obligations determine the specifics of protecting the rights of their participants, where the main role is given to the non-jurisdictional form of protection. The authors pay special attention to the claims procedure for dispute settlement, supporting the position that this procedure is inter-industry in nature. At the same time, it is proposed to use other conciliation procedures along with the claim procedure (or after) before applying to the court, which, in turn, according to the authors, will allow building an effective system for protecting the violated rights of participants in transport obligations.

МАТЕРИАЛЬНЫЕ И ПРОЦЕССУАЛЬНЫЕ АСПЕКТЫ ЗАЩИТЫ ПРАВ УЧАСТНИКОВ ТРАНСПОРТНЫХ ОБЯЗАТЕЛЬСТВ

This study is determined by the theoretical and practical interest in the study of issues related to the protection of the rights of participants in transport obligations. The need for research is dictated by the direct needs of the subjects of the relevant legal relations in the actual exercise of rights, as well as in connection with the search for the most effective use of existing civil law forms of protection of violated rights of participants in transport obligations. Turning to general theoretical problems, in particular, to the concept of protection of rights, it is concluded that this is common to civil law and civil procedure. The authors state that the specifics of transport obligations determine the specifics of protecting the rights of their participants, where the main role is given to the non-jurisdictional form of protection. The authors pay special attention to the claims procedure for dispute settlement, supporting the position that this procedure is inter-industry in nature. At the same time, it is proposed to use other conciliation procedures along with the claim procedure (or after) before applying to the court, which, in turn, according to the authors, will allow building an effective system for protecting the violated rights of participants in transport obligations.

PLEA DEALS OR PRE-TRIAL COOPERATION AGREEMENTS: A COMPARATIVE VIEW OF JAPAN’S NEW INSTITUTION OF CRIMINAL PROCEDURE LAW

The article examines the new institute of criminal procedure law in Japan, which provides for the possibility of reaching a certain agreement between the defense and the prosecution. Conciliation procedures have become a fairly common legislative practice in many States, which should be considered as a global trend.

Примирительные процедуры с участием несовершеннолетних в уголовном судопроизводстве

The article reveals the possibilities of using conciliation technologies on minors in Russian criminal proceedings. The author analyzes the statutes of the draft law aimed at reforming the criminal procedure law and assesses the prospects for the use of special conciliation procedures as an alternative to criminal prosecution of minors.

Pre-trial agreement on cooperation in russia and abroad

The article presents the results of a comparative legal analysis of the institute of pre-trial cooperation agreements in the criminal procedure legislation of foreign states. It is concluded that the specifics of the conclusion of this agreement and its subsequent implementation depend on the type of legal system and the nature of national criminal procedure legislation of each country. By its nature, the Russian institute of pre-trial cooperation agreement is similar to a number of conciliation procedures of the continental legal system, but it has distinctive features due to the peculiarities of domestic legislation.

ОСОБЕННОСТИ И ЗНАЧЕНИЕ СИСТЕМАТИЗАЦИИ НОРМ О ПРИМИРЕНИИ В ПРОЦЕССУАЛЬНЫХ КОДЕКСАХ

The article analyzes the new provisions of procedural legislation in the aspect of systematization of norms on reconciliation. As the features of this systematization, it is indicated that it was carried out in the form of codification, is of a complex nature, affects not only procedural codes, but also other regulations. The authors reveal the significance of the systematization of the norms on reconciliation. In general, the integration of conciliation procedures into legal proceedings shifts the paradigm of judicial activity from confrontation between the parties to their cooperation, which corresponds to the development trend of procedural legislation in many countries. In practical terms, the new rules are aimed at enhancing the activities of the court and participants in the process towards the peaceful settlement of disputes. The informative and cognitive value of the new provisions on conciliation procedures for practicing lawyers, as well as the need to change educational programs for the training of lawyers in relevant disciplines, is noted. It is concluded that the new legal regulation of conciliation procedures is important for the development of the doctrine. Foundations for the integration of law and other humanitarian and social sciences related to conflicts and their termination. As a result of the systematization, further development of legislation on conciliation procedures and the doctrine of alternative dispute resolution is predicted.

On implementation of the models of judicial mediation in the administrative process

This article examines the possibility of implementation of the models of judicial mediation tested in international practice applicable to administrative disputes. Analysis is conducted on the models of judicial mediation, their merits and flaws. The author outlines the spheres and categories of administrative cases that may require judicial mediation, as well as provides original perspective upon the problem. The integration of mediation into judicial process is feasible not only as a separate procedure – a number of countries features such mediation technique as in-house-mediation, which represents a peculiar approach towards establishing dialogue between the parties to the case aimed at conflict resolution within the framework of judicial proceedings. The analysis of the existing points of view in scientific literature reveals the following criteria that ensure the possibility of implementation of conciliation procedures in the administrative process: absence in the law of a direct ban on the use of mediation procedures; absence of violations of public interest along with observance of the rights and legitimate interests of other parties; competence of the official to conduct conciliation procedure set in the regulatory framework; normative legal consolidation of the possibility of conducting conciliation procedure; strict adherence by the official to the objectives determined by their competence and professional activity (objective, subjective, territorial, and temporal).

Проблемы процедуры медиации в гражданском судопроизводстве

Introduction: the paper discusses the actual problems of the legislation of the mediation procedure, as well as the existing obstacles to the development of civil practice in the application and improvement of the alternative dispute resolution procedure. The purpose of the paper is to study the problems of the institution of the mediation procedure, to understand the concept of conciliation procedures for further improving and forming recommendations for the efficiency of justice. In the process of consideration, the doctrinal problems, the formal-legal approach and the formallegal, systematic methods were used. Results: the study of the legislation allows us to identify the provisions that need to be improved and changed for a more active and complete implementation of the mediation procedure in public relations. Conclusions: the author identifies the ways to resolve such difficulties at the pre-trial stage to optimize the judicial burden. The dispute resolution procedure with the participation of a mediator is considered from the position of an effective alternative to judicial proceedings. It has a legislative consolidation, but there are a number of regulatory gaps that require solving a large number of tasks to improve them. It is necessary to carry out the extensive work in order to integrate this procedure into the civil and arbitration process: to develop a strategy for the systematic development of the mediation institute, to inform the public, the business community and practicing lawyers in order to introduce the procedure and develop the practice of application, and also, to solve the problem with the professional training of mediators and to encourage them to engage in this type of activity on a professional basis.

Common and distinctive features of judicial and extrajudicial mediation in disputes concerning appeals against decisions, actions or omissions of subjects of power

The article examines the place of disputes over appeals against decisions, actions or omissions of the subjects of power in modern conditions. Some scientific views on the classification of types and kinds of mediation as a legal institution are analyzed. Existing models of mediation are identified. It is stated that in the Ukrainian legal system there are two possible models of mediation: judicial and extrajudicial. The own concept of «judicial mediation» is formulated. It is argued that judicial mediation is provided by administrative procedural law in the form of dispute resolution with the participation of a judge. The content of out-of-court mediation and its significance in administrative disputes are revealed. Features and signs of judicial and extrajudicial mediation are described. It is stated that judicial mediation is rarely used in administrative proceedings, and there are no mechanisms for the use of out-of-court mediation. The essence of judicial and extrajudicial within the framework of resolving disputes concerning appeals against decisions, actions or omissions of subjects of power has been studied. Modern scientific approaches to the ratio of components of judicial, extrajudicial mediation and litigation are generalized. It is proved that in science there is no single approach to the characteristics of extrajudicial and judicial mediation. For the first time, the author provides a comparative description of the main elements of judicial and extrajudicial mediation in disputes concerning the appeal of decisions, actions or omissions of the subjects of power. The role of judicial and extrajudicial mediation as legal institutions is defined. The possibility of using judicial and extrajudicial mediation in disputes concerning appeals against decisions, actions or omissions of subjects of power has been established. The basic principles of judicial and extrajudicial mediation are formulated. The status of a mediator in judicial and extrajudicial mediation is revealed. The functions of the mediator are highlighted. The duration of judicial and out-of-court mediation procedures is stipulated. The cost of judicial and extrajudicial mediation procedures is substantiated. The essence and content of the result of judicial and extrajudicial mediation procedures are determined. It is proved that judicial and extrajudicial mediation in disputes with public authorities and their officials have their advantages and disadvantages. In particular, it was found that, compared to judicial, out-of-court mediation in disputes over appeals against decisions, actions or omissions of subjects of power is a more effective conciliation procedure, but there are questions about the level of professionalism and education of the mediator. Ways are provided to improve the implementation of judicial and extrajudicial mediation in resolving disputes concerning appeals against decisions, actions or omissions of the subjects of power.

Judicial Conciliation in the Protection of Consumer Rights during the Reform of the Procedural Legislation of the Russian Federation

Problem statement. The introduction of judicial conciliation procedures in the arbitration, civil and administrative process in order to protect the rights of consumers of services can serve as a positive impetus to the development of civilized out-of-court dispute resolution. However, the corresponding norms of APC RF, CPC RF, the CAJ RF and the Regulation of judicial reconciliation includes a number of provisions that are subject to critical analysis. Special attention should be paid to the rules that establish requirements for candidates for judicial conciliators, in terms of the need for retired judges to conduct research activities, which can hardly be considered justified. Purpose and objectives of the study. To identify the essential features of the application of judicial reconciliation in the protection of the rights of consumers of services during the reform of the procedural legislation of the Russian Federation. Objectives of the study: to perform judicial reconciliation in the protection of the rights of consumers of services to identify deficiencies of legal regulation in the field of judicial reconciliation under the protection of the rights of consumers, to formulate separate proposals for reform of the law. Method of research. We used empirical methods of comparison, description, and interpretation; theoretical methods of formal and dialectical logic; and historical-legal and comparative-legal methods. Results, brief conclusions. It is determined that the current Russian legislation in relation to the judicial process now provides for three types of conciliation procedures used to protect the rights of consumers of services: negotiations, mediation and judicial reconciliation. Mediation and judicial reconciliation, although separated by law, are not fundamentally different in nature. Although there are different requirements for mediators in these types of reconciliation, the appropriateness of such a separation is not sufficiently convincing. It is established that the requirements imposed on conciliators in combination with the powers vested in them can negatively affect the results of reconciliation to protect the rights of consumers of services. In this regard, it is proposed to amend the relevant procedural codes and the Rules of judicial reconciliation, which would eliminate the identified contradictions and shortcomings.

Судебное примирение: проблемы и перспективы

The principle of voluntariness of participation in the conciliation procedure, with passive behavior of the parties, should not act as an obstacle for the initial appeal of the parties to the judicial conciliator to discuss the prospects for a peaceful settlement of the dispute and conduct judicial conciliation. Such an appeal should be initiated by the court when it detects the possibility of reconciliation of the parties and there are no objections of the parties, or by virtue of a direct indication in the law on the need for a conciliation procedure in certain categories of cases.

Основные проблемы развития института примирительных процедур в гражданском процессе

The article deals with current problems of development of the Institute of conciliation procedures in civil proceedings. The author analyzes the point of view of scientists about the concept of “conciliation procedures”, on the basis of which he identifies a number of characteristic features. The study of the legal framework on this issue allows us to systematize the key types of conciliation procedures in civil proceedings-negotiations, mediation, judicial reconciliation. Despite the fact that these procedures are reflected in the law, they are rarely used in practice, which is due to some problems, in particular, the low level of legal literacy of the population; the lack of well-developed information work with citizens; people’s distrust of the new legal institution; the rather high cost of services provided by mediators, etc. All this requires prompt resolution, which will reduce the burden on the judicial authorities and improve the quality of the process.

Процедура медиации как вид примирения в современном гражданском процессе России

Mediation technologies are one of the alternative to judicial methods of dispute resolution. Difficulties in the application of this institution, which is practically not used by the parties to the conflict, predetermined the need for its reform, as well as the creation of a whole complex of conciliation procedures, their legislative consolidation and stimulation. The article analyzes the practice of the parties to the dispute to the mediation procedure that existed before the entry into force of the Federal Law of July 26, 2019 No. 197-ФЗ ‘On Amending Certain Legislative Acts of the Russian Federation’, as well as the short stories of the civil procedural law on conciliation procedures in general that can be used after October 25, 2019.

О некоторых актуальных вопросах медиации и судебного представительства в гражданском и арбитражном процессах

The article is devoted to topical issues of conciliation procedures, mediation in connection with the institution of legal representation and law costs. The problematic aspects that hinder the wider application of the mediation procedure are stated, the ways of improving the legislation are proposed.

Основные направления и тенденции развития цивилистического процесса

The article reveals the main directions and trends in the development of the civil process, in particular, the tendency to bring together not only civil and arbitration processes, but also civil and administrative processes. Demonstrates the desire of the legislator to unify civil, arbitration and administrative proceedings. The realized ideas of unification of the civil process are analyzed, such as replacing the institution of jurisdiction with the institution of jurisdiction, reforming simplified procedures for considering cases, introducing the institution of conciliation procedures, changing the procedure for calculating procedural terms, changing the procedure for considering challenging a judge, and other issues that accompany reforming the civil process.

Alternative Dispute Resolution vs. Judicial Conciliation in the Civil Process of Transit States: A Comparative Study

The study investigates the current problems of judicial and extra-judicial conciliation procedures (alternative ways of resolving civil disputes) in states that have just started implementing such a procedural tool. Despite the fact that the term "conciliation procedures” is actively used in the science of civil procedure, this category is rather vague in countries that are just beginning to apply judicial conciliation in parallel with other conciliation procedures. Priority attention is focused on practical, legislative, and scientific problems of applying this procedural tool for rapid resolution of legal conflicts in Ukraine, as a state that only in 2017 (and in fact since the beginning of 2018) introduced this legal innovation. The purpose of the study is to elaborate on the legal nature and correlation between judicial conciliation (settlement of civil disputes with the participation of a judge under Ukrainian legislation) and alternative ways of resolving civil disputes. The study is based on several scientific methods that have identified the logic and general direction of knowledge of the problem of judicial conciliation. In particular, to determine the legal nature, essence, criteria of correlation, and delimitation of alternative dispute resolution and judicial conciliation, the study used the dialectical scientific cognition method. The study engages in a comparative study of the statutory regulation of similar procedures in the Russian Federation and Belarus legislation. It is concluded that alternative dispute resolution and judicial conciliation are closely interrelated and, depending on their types, can sometimes manifest themselves as synonymous categories or institutions of law.

СУДЕБНОЕ ПРИМИРЕНИЕ И СУДЕБНЫЙ ПРИМИРИТЕЛЬ

The article analyzes the provisions of procedural legislation on judicial conciliation and judicial conciliators. The authors review the provisions of several draft laws that contained rules on judicial conciliators. In particular, attention is paid to the projects of the Supreme Arbitration Court of the Russian Federation, projects of the Supreme Court of the Russian Federation, the Concept of a unified civil procedure code. The authors pay attention to the experience of foreign states in the formation of the institution of judicial conciliation procedures. The notion of judicial conciliation is considered in detail, as well as individual consequences of the consolidation of provisions on judicial conciliation in legislation. Authors conducted an independent analysis in order to compare and distinguish between judicial conciliation and mediation. For this, the authors have formulated the necessary criteria. The consequences of the appeal of the parties to the dispute to judicial conciliation are revealed. The specifics of regulating relations in organizing and conducting judicial conciliation, as well as the results of an appeal to judicial conciliation, have been established. Most of the article is devoted to the status of the judicial conciliator. The requirements for it are considered. The features of the position of the judicial conciliator in the organization and conduct of judicial reconciliation are revealed. Attention is paid by the authors to the formation of lists of judicial conciliators. The features of financing the activities of judicial conciliators are noted.

Implementation of conciliation procedures in socio-cultural and legal dimensions

The study’s objective is to develop theoretical provisions revealing the conceptual features of forming and implementing conciliation procedures. The authors pay special attention to the most controversial issues that prevent their dissemination in the Russian Federation. The methodological basis of the study consisted of dialectical analysis, which allowed to evaluate the results of rule-making and law enforcement; the comparative-legal method contributed to an objective assessment of the quality of existing legislation; the systematic method allowed to interpret the categorical apparatus on the example of studying “conciliation procedures”; the method of legal modeling allowed to formulate a model of conciliation procedures, which has a separate, independent place in the legislation of several countries. The result of the work was to draw attention to the meaning of “conciliation procedures” in its empirical and functional aspect and to prove that conciliation procedures, with their objective and subjective justification, are a fundamental category of modern objective law, in which the freedom of choice of subjects of law is not limited to permissive and administrative means, but must be justified by the essence of the dispute being resolved and the final result. The study’s novelty is the conclusion that in some cases, the reference to legislation providing for “conciliation procedures” for legal entities is not always consistent and does not reflect its ontological nature. For, conciliation procedures, expressing an example of the permissive rule of Russian legislation with the peculiarities of its legal regulation of certain legal institutions, should be aimed at developing voluntary settlement by the parties to a legal dispute as a special type of social conflict.

Некоторые проблемы применения примирительных процедур при разрешении корпоративных споров, осложненных иностранным элементом

The article describes the perspectives for using mediation to resolve corporate disputes complicated by a foreign element, when it is necessary to resolve possible conflicts by reaching consensus between the parties. When using conciliation procedures, one should consider different states of the relevant national legislation and regional international agreements, and also take into account not only the interests and interpretation of the problem situation from the position of the participant – the party to the dispute, but also the legislative regulation based on the current legal framework. One problematic issue in this area is the existence of several legal approaches. Cooperation is often complicated by the likelihood of a negative outcome. Conflicts of interest can lead to unwanted consequences. One of the most effective ways for settling conflicts is the use of conciliation procedures: negotiations, mediation, mediation and judicial conciliation, as well as other procedures that do not contradict the current legislation. In general, mediation is seen as a flexible process that supports the autonomy of the parties, legal and non- legal approaches to problem solving and creative individual solutions. In addition, the issue of choosing conciliation procedure for resolving a dispute can be resolved by participants in corporate relations even before the conflict arises by fixing a mediation clause in the local documents of the organization.