Current Civil Procedure Research Articles

Issues of reimbursement of expenses to expert institutions in civil and criminal proceedings

The article is devoted to the analysis of the current civil procedure and criminal procedure legislation through the prism of Resolution No. 43-Resolution of the Constitutional Court of the Russian Federation dated July 20, 2023. Based on the study of the position of the higher courts, a comparison is made of the mechanism for appointing and conducting forensic examinations in the civil and criminal proceedings of Russia. Considerable attention is paid to the new procedure proposed by the Constitutional Court of the Russian Federation for payment of forensic examinations carried out in courts of general jurisdiction, which is valid until appropriate amendments are made to the Civil Procedure Code of the Russian Federation. As a research task, the authors identified an attempt to assess the consequences of using such a mechanism in criminal proceedings. Based on the study of the fundamental principles of criminal proceedings, it has been established that it is impossible to link the issue of assigning a forensic examination to its pre-payment to victims or suspects, accused, defendants. The inadmissibility of such an approach is shown due to the specifics of the criminal process, its publicity and the impossibility of linking the issues of proof in the case to the solvency of the parties. The distribution of costs in criminal cases should be carried out only after the resolution of the case on the merits and the adoption of a final court decision. A different approach to the issue of cost allocation, aimed at ensuring the right of expert institutions to pay, will entail a violation of the principles of criminal procedure.

CONTRACTUAL TERRITORIAL JURISDICTION IN THE CIVIL PROCEDURE OF THE REPUBLIC OF KAZAKHSTAN: QUESTIONS OF THEORY AND PRACTICE

The right to judicial protection is directly related to the provision of subparagraph 3 of paragraph 3 of Article 77 of the Constitution of the Republic of Kazakhstan, that no one can change the jurisdiction provided for by law without his consent. The correct determination of the jurisdiction of a particular civil case to a particular court is a prerequisite for exercising the right to appeal to the court and ensuring access to unhindered judicial proceedings. The article is devoted to the issues of reforming the institution of jurisdiction in civil proceedings. The relevance of the topic is due to changes in the current Civil Procedure Code of the Republic of Kazakhstan, as well as the lack of scientific research concerning the study of the updated institute of jurisdiction in civil proceedings. In the theory of civil procedural law, there is no generally accepted notion of contractual extraterritorial jurisdiction. It is necessary to consider the fact that it is the rules of jurisdiction that create serious difficulties in law enforcement. The problem of the correct determination of jurisdiction is very important for the judiciary. The purpose of writing this scientific article is to analyze changes in civil procedural legislation on the issue of contractual extraterritorial jurisdiction. Methodological basis: systematic, descriptive, comparative legal. Private scientific methods were also used: the legal-dogmatic method of interpreting legal norms.

Practical application of the reciprocity principle in the recognition and enforcement of foreign judgments in civil and commercial matters in Vietnam

The reciprocity principle was first introduced in Vietnam by Decree 83/1998 to allow for the recognition of foreign non-executionary judgments, decisions on family and marriage matters in Vietnam. It was then adapted in the first Civil Procedure Code in 2004 and was later modified in the current Civil Procedure Code for the purpose of recognition and enforcement of foreign judgments from non-treaty countries. This article examines the practical application of this reciprocity principle in Vietnamese courts by analysing cases in which they have recognised or denied recognition to foreign judgments in civil and commercial matters (that is, non-family matters), as well as a recent development in the Supreme Court’s Resolution Draft on guidance on the recognition and enforcement of foreign judgments, which adopts a presumed reciprocity approach. The article concludes that the courts have not applied the reciprocity principle in a consistent manner. The resolution for this current problem is for the presumed reciprocity approach to be promulgated soon to facilitate a uniform application in the local courts.

ACTUAL PROBLEMS OF DETERMINING THE JURISDICTION OF CONSUMER DISPUTES

The most urgent problems of determining the jurisdiction of disputes involving consumers are considered. Legal uncertainty is revealed regarding the possibility of considering individual disputes related to consumer rights protection in courts at the location of the plaintiff. The conclusion is substantiated that the established law enforcement practice has made quite an effective attempt to solve the indicated problem of applying the norms of the current civil procedural legislation on jurisdiction. At the same time, the author expresses his opinion that such an approach seems to be extremely limited, since it does not give a full answer to the question why the sphere of inland waterway transport becomes an exception to the general rule on alternative jurisdiction of disputes involving consumers-citizens. To solve the identified problem, a proposal has been formulated to amend the current civil procedure legislation, namely: to exclude Part 3 of Article 30 of the Civil Procedure Code of the Russian Federation. It seems that such an approach will fully establish necessary balance between the interests of the consumer and the transport operator, and will also be more consistent with the fundamental principles of consumer protection legislation. an undoubted advantage of such a novelty will be elimination of contradictions in judicial practice in these disputes.

Reconstruction of Niet Ontvankelijke Verklaard Verdict In the Law of Civil Procedure as a Manifestation of Fast, Simple, Low Cost and Complete Principle of Justice

Dispute resolution through court is more favorable because the binding decisions of judges can resolve cases. This study discusses ratio legis of niet ontvankelijke verklaard in the law of civil procedure and in the formulation of the delimitation of the judge in giving niet ontvankelijke verklaard in the fast, simple, low cost, and complete settlement of civil disputes. This study used legal research methods with legislation and conceptual approaches. The result of the study showed that The limitation of the judge in examining the lawsuit that does not meet the formal requirements and decides the lawsuit is inadmissible (niet onvankelijk verklaard), in the absence of fast, simple, low-cost, and complete civil disputes, as stated in the Draft Bill of the Law of Civil Procedure, which is essentially related to the types of exceptions that can become the basis for the judge in determining the lawsuit to be inadmissible (niet onvankelijk verklaard). Indonesia's current civil procedure laws, HIR and RBg, do not specifically outline the standards that a judge must employ to declare that a matter is inappropriate for filing (niet onvankelijk verklaard). Before making a ruling that is not admissible (niet onvankelijk verklaard) in the settlement, the judge must be aware of his or her restrictions in this situation. As stated in the Draft Bill of the Law of Civil Procedure, the judge is limited in examining lawsuits that do not meet the formal requirements and deciding that the lawsuit is inadmissible (niet onvankelijk verklaard), in the absence of quick, easy, inexpensive, and comprehensive civil disputes. This limitation is essentially related to the types of exceptions that can become the basis for the judge in determining that the lawsuit is inadmissible (niet onvankelijk verklaard)

To Promote or Not to Promote? The Role of the Judiciary in the New Zealand Commercial Mediation Market

Judicial promotion of mediation has been identified as an important way to encourage and increase the amount of commercial mediation in New Zealand. This latest contribution to the New Zealand Commercial Mediation Study (NZCMS) explores the views of District and High Court judges in relation to the use of mediation in their courts. Comparisons are made with earlier NZCMS studies, including the controversial issue of mandatory mediation. While the judiciary is well placed to increase the amount of commercial mediation in New Zealand, this paper concludes that it is unlikely that this potential will be realised under the current civil procedure settings. District and High Court judges possess a good understanding of mediation and its benefits but also prioritise party autonomy in choosing whether to undertake mediation or not.

The Procedure for Concluding a Settlement Agreement in Civil Litigation

In article explores the procedure for concluding a settlement agreement in civil proceedings. It is shown that in accordance with the current civil procedure legislation, the issue of approving a settlement agreement is considered at a court hearing with the mandatory participation of all interested parties. The paper critically evaluates the exception to this rule, expressed in the possibility of sending an application for approval of a settlement agreement in the absence of interested parties (Part 3 of Article 153.10 of the Civil Procedure Code of the Russian Federation, Part 3 of Article 141 Arbitration Procedure Code of the Russian Federation). In the course of the conducted research, it was found that in civil and arbitration proceedings, the issue of approving a settlement agreement concluded at the stage of preparing the case for trial is resolved differently. The author makes critical comments on this. It is argued that the approval of the settlement agreement reached at the stage of preparing the case for trial, both in civil and arbitration proceedings, should take place in the preliminary, and not the main court session.

СУДЕБНАЯ РЕФОРМА В РОССИИ КОНЦА XX – НАЧАЛА XXI ВЕКОВ

The author analyzes the reform of the Russian legislation regulating the activity of courts for consideration of civil cases, the reform, which began in the 1990s and continues to this day. Highlights the main stages of the reform related to the adoption of the Constitution of the Russian Federation 1993, changes in the judicial system, with the adoption of the Commercial Procedure Code of the Russian Federation in 1992, 1995, 2002, with a major change of Civil Procedure Code of the RSFSR 1964 and the entry into force of the current Civil Procedure Code of the Russian Federation, 2002. In addition, the author calls the current trends in the development of procedural legislation, including reforms made by Federal Law of 28 November 2018 No. 451-FZ.

Unification of the Case-law within the Civil Procedure System of Romania

The present article contains the main legal practice unification mechanisms, as regulated by the Romanian legislator in accordance with the current Civil Procedure Code, as well as those partaking to the Supreme Court jurisprudence in conjuncture with the lower courts by granting a uniform settlement on the legal issues comprised by the litigations referred to. The presentation starts off with the referral in the interest of the law, a traditional instrument within the national civil procedure legal sphere of activity, it continues with the notification of the Supreme Court for settling certain legal matters, a novelty at national level and of whose practical utility has already been recognised, and it ends by making reference to the second appeal, as an extraordinary means of challenge, with a relatively reduced efficiency, at present, in settling the different interpretations of the legal norms.

Reducing the Amount of Maintenance: Problematic Issues Related to Minor Lawsuits (Judicial Practice in Ukraine)

The article is devoted to problematic issues of judicial practice in Ukraine, related to the consideration of civil cases on reducing the amount of maintenance in the context of defining this category of cases as minor. Attention is drawn to the fact that according to the current Civil Procedure Code of Ukraine, the cases of recovery of maintenance, increasing its amount, payment of additional costs for the child, collection of penalties for late payment, indexation of maintenance, changing the method of collecting the maintenance payments are considered minor unless they are related to establishment or contestation of paternity (maternity) (paragraph 3 of Part 6 of Article 19 of the Civil Procedure Code of Ukraine). However, in this norm, there is no legislative instruction to refer reduction of maintenance to the category of minor lawsuits, which, taking into account the number of such cases that can be reviewed in cassation, is viewed as a legislator’s fault.

Hungarian Civil Procedure Provisions during the state of danger

In March 2020, the Hungarian civil procedure faced an extraordinary challenge by the unpredictable but widely threatening Covid-19 epidemic, which necessitated the introduction of provisions as effective as possible to protect public health. The task was challenging because the public does not only expect the courts to settle the legal disputes righteously, but, based on a century-long development in the history of law, the requirement of verbal and direct hearings has become of accentuated importance. The traditional model of civil cases centres around the public institution of hearings with the simultaneous presence of the judge, the parties, and their representatives, as well as other actors in the case. Simultaneously, the legislator accentuated the importance of concentrated and rapid case management, especially in the past few years. The extraordinary situation caused by the epidemic might have raised the complete close-down of courts. But, as there is no court proceeding without hearings, this solution could not have been acceptable by either the parties seeking to assert their rights or by court employees for reasons of human resources management, as the judgements of legal disputes would have been postponed for an undefined period. The interests of both the citizens seeking justice and the court employees could be fulfilled by a solution that created the conditions of uninterrupted jurisdiction and the avoidance of personal contacts to protect their health. After a necessary period of preparation resulting from the unexpected situation, this extremely difficult issue was solved by the Government Decree 74/2020 (from 31 of March), officially abbreviated as Veir., which did not abrogatethe generally effectual procedure rules, but merely adjusted them to the specificities of the crisis situation. The same happened to the civil procedure too. During the period of the state of danger, in contentious (and noncontentious) cases, depending on the date of bringing of the action, the regulations of either Act III of 1952 (the 1952 Civil Procedure Code, henceforth 1952 Pp.), in force until the 31 of December 2017, or Act CXXX of 2016 (the current Civil Procedure Code, hereafter Pp.), in power from the 1 of January 2018, were applicable, with the amendments included in the government decrees. This different regulation formed the special state of danger procedure law to mitigate the consequences of the epidemic.

Electronic document flow as evidence in civil proceeding: evaluation features and application problems

Due to the development of information technologies, electronic document flow is actively becoming a part of modern life, and the activity of courts is not an exception. Electronic documents are increasingly considered by courts as evidence in civil cases. Judicial practice faces certain problems when evaluating such evidence due to the insufficiency of legal regulation of such kind of evidence. The article examines the theoretical and practical aspects of the existence of an electronic document as a type of written evidence, attempts to reveal the essence of an electronic document, define its features as compared to a traditional written document, and analyzes the approaches to the definition of the concept of ‘electronic document’, which have developed in Russian legal science. The analysis of the practice in the application of an electronic document as evidence with regard to relevance, admissibility and adequacy is carried out. Certain problems which judges have to face when using an electronic document as evidence have been identified. The authors’ understanding of an electronic document is submitted, the framework of problems and gaps under current civil procedure legislation is defined, and methods of solution are proposed. The need to define an independent type of evidence – electronic evidence is substantiated, with it further being enshrined in the Civil Procedural Code of the Russian Federation, as well as to formalize in legislation the concept of an ‘electronic information medium’.

К вопросу о нарушении единообразия судебной практики

The article is devoted to such grounds for the cancellation or amendment of court decisions in the supervisory procedure, as a violation of the uniformity of judicial practice. The author analyzes the provisions of the current civil procedure legislation, the explanations of the Plenum and the Presidium of the Supreme Court of the Russian Federation on the application of paragraph 3 of Article 391.9 of the Civil Procedure Code of the Russian Federation. The article identifies such problems as the lack of normative consolidation of the terms "judicial practice" "unity of judicial practice", the uncertainty of the legal status of acts of the highest judicial instance, the possibility of bringing judges to disciplinary responsibility for violating the unity of judicial practice. Based on the results of the study, the author comes to the conclusion that comprehensive legislative changes are necessary to achieve the unity of judicial practice

Электронные доказательства в цивилистическом процессе

The current civil procedure legislation refers to information obtained from electronic sources of information as written evidence. At the same time, electronic evidence is not an independent means of proof. The purpose of this article is to study the possibility and necessity of allocating electronic evidence as independent means of proof. The traditional approach to understanding the electronic document is based on the participation of the person in the information interaction as the author of the document and its performer. At the same time, the electronic document is characterized by its (special) properties related to its creation, change, preservation. In addition, the authors draw attention to the existence of electronic documents that do not have a human-readable form but create, modify or terminate rights and obligations. The study also points to the possibility of self-participation of computer tools in information interaction. In the article, the authors propose to distinguish electronic evidence as an independent means of proof, and also justify the theoretical and practical necessity of this approach to the legal regulation of the procedure of proof in civil and arbitration proceedings (research, recording, evaluation of evidence from electronic sources).

Separate conflict problems of ancipal judicial decision

The article examines the problems arising in law enforcement practice associated with one of the stages of civil proceedings - the execution of a court decision in absentia. Collisions arising at the stage of the execution of a court decision in absentia, and the negative consequences associated with this fact, are characterized not only by the violation of the rights and legitimate interests of the plaintiff, but also mediate a decrease in the image of the judicial system, and state institutions in general due to the presence of this negative phenomenon. The decision in absentia is not a novelty of civil proceedings, however, despite this, its detailed study reveals the presence of «dark spots» that force the law enforcement officer to look for effective ways to exclude them, which would not contradict the norms of other branches of law: executive, labor and some others. The article provides the norms of the current civil procedure legislation governing the institution of extramural proceedings, examples of cases from current judicial practice. In addition, the study, along with the legal one, provides an etymological analysis of the phenomenon of collision. In the conclusion of the article, it is emphasized that legal collisions have a negative effect on the effectiveness of legal regulation, the state of law and order. They contradict the existing legal institutions, come into conflict with the legal system and, thereby, hinder the development of the state. Along with the indicated negative aspects, the authors of the article analyze the existing «recipes» for eliminating collisions and propose new ways to overcome them.

La jurisprudencia de la Corte Interamericana de Derechos Humanos y el debate sobre los recursos en las reformas procesales

El presente artículo hace una revisión y análisis sobre la jurisprudencia de la Corte Interamericana de Derechos Humanos con relación al derecho a recurso, tanto en el ámbito del proceso penal como en otras materias. En este contexto, se revisará qué es lo que la Corte ha entendido por abarcado dentro de este derecho dentro de un procedimiento penal y hasta dónde llegan las obligaciones del Estado de establecer un sistema recursivo en otro tipo de materias, como los procedimientos civiles. Dicho análisis tiene importancia en la actualidad debido al movimiento de reformas procesales que ha tenido o está teniendo lugar en diversos Estados miembros de la Convención Americana sobre Derechos (entre ellos las actuales reformas a los procedimientos civiles), donde la jurisprudencia de la Corte ha sido invocada a efectos de orientar y exigir a los Estados en cuanto a cómo deben realizar modificaciones a sus legislaciones ya reformadas con el objeto de verse por cumplidas las obligaciones de la Convención respecto del derecho a recurrir.

ЗАГАЛЬНІ ПОЛОЖЕННЯ ПРО ЦИВІЛЬНУ ЮРИСДИКЦІЮ

From the moment of becoming valid the law of Ukraine «On amendments to the Commercial procedural code of Ukraine, Civil procedural code of Ukraine the Code of administrative procedure of Ukraine and other legislative acts» of 3 October 2017 jurisdiction of courts courts is defined through the concept of «jurisdiction». This article considers the practical and theoretical significance of the amendments made by this legislative act to the current Civil Procedure Code of Ukraine. The significance of civil jurisdiction and its classification are revealed. To date, the science of civil procedural law has not developed a unified approach to the definition of «jurisdiction» and «civil jurisdiction». With regard to substantive and subjective jurisdiction, it is emphasized that these aspects should be taken into account together. Territorial jurisdiction is defined in the Civil Procedure Code of Ukraine as jurisdiction. The instance jurisdiction determines the scope of powers of the court of each link of the judicial system of Ukraine, and the territorial (jurisdiction) determines the limits of powers between courts within one judicial link to hear cases in the first instance. In general, the rules of territorial jurisdiction are less strict than the rules of substantive jurisdiction, as the level of the court is considered appropriate, but violations of the rules of territorial jurisdiction may create additional inconveniences, which, however, usually do not objectively affect the content of the decision. The difficulty of establishing the jurisdiction of the court at this stage of updating the judicial system of Ukraine is due to significant changes in procedural law. The process of harmonization of procedural legislation has contributed to the consolidation of a single conceptual apparatus, which has so far been used mostly at the theoretical level. Thus, at the legislative level, the jurisdiction of the courts of Ukraine is determined exclusively by the jurisdiction, which in the Civil Procedure Code of Ukraine, the Commercial Procedure Code of Ukraine and the Code of Administrative Procedure of Ukraine is divided into substantive and subjective, instance, territorial. However, the analyzed provisions of the Civil Procedure Code of Ukraine demonstrate the need to further improve the rules of civil jurisdiction.

O inicijativi Vrhovnog kasacionog suda za izmenu Zakona o parničnom postupku

The current Civil Procedure Code has been in force since February 1, 2012. Its provisions dealing with a special procedure for the protection of collective interests, provisions regulating legal counsel, and provisions related to deadline for requesting reopening of proceedings have been quashed by the Constitutional Court. Signifi cant changes to the Civil Procedure Code have been passed by the Serbian Parliament in 2014. According to these changes, appeal on points of law has become widely accessible for parties to the proceedings. The threshold for lodging this extraordinary legal remedy has been reduced from 100.000 to 40.000 euros in the general procedure, and from 300.000 euros to 100.000 euros in commercial disputes. Regardless of that threshold, appeal on the points of law has become admissible if the second instance court has reversed the judgment of the first instance court and if the second instance court has adopted appeal, quashed the judgement of the first instance court and decided on the claims of the parties. If these conditions for lodging appeal on the points of law have not been met, a party may lodge an appeal on the points of law if the Supreme Court of Cassation declares this legal remedy admissible in order to unify jurisprudence, or to provide new interpretation of the law, or to consider some other issues of general importance. These legislative changes have turned appeal on the points of law into ordinary legal remedy and prevented the Supreme Court of Cassation to perform its main role in our judicial system. Therefore, the Supreme Court of Cassation has proposed necessary changes to the Civil Procedure Code. In this paper, we have analysed these proposals and their impact on the protection of rights of the parties.

ПРОБЛЕМИ ЗАКОНОДАВЧОЇ РЕГЛАМЕНТАЦІЇ ТА ПРАКТИЧНОЇ РЕАЛІЗАЦІЇ СПРОЩЕНОГО ПОЗОВНОГО ПРОВАДЖЕННЯ В ЦИВІЛЬНОМУ СУДОЧИНСТВІ

As a result of the reform of the Ukrainian Civil Procedural Law in 2017, civil justice has undergone significant changes. That is, – courts of first instance may consider civil cases in a general proceeding or in a summary proceeding. The issue of legislative regulation and practical implementation of summary proceeding in civil litigation is in the focus of scientists and legal practitioners. To date, a separate Chapter 10 of Section III of the current Civil Procedure Code of Ukraine, which has the title – "Review of cases in summary proceedings” is devoted to a summary proceeding. This Chapter of the Civil Procedure Code of Ukraine determines the categories of cases to be considered in the procedure of summary proceedings, as well as the cases that cannot be considered in the procedure of summary proceeding, procedural features and the procedure for considering such cases. At the same time, there are a number of disadvantages that cause certain problems that negatively affect to the theoretical basis and practical aspect of summary proceeding implementation in civil litigation in the part of the normative consolidation of the summary proceeding in the Civil Procedure Code of Ukraine. Consequently, the issue of "minor cases" and the determination by courts of grounds for the consideration in summary proceeding of civil cases is the subject of our attention in this article. Particularly these issues concern the lack of legal definition of the concept of "minor cases" at the legislative level, as well as the lack of clear criteria for assigning a particular case to the category of "minor" ones. Special attention should be paid to the effectiveness of the introduction of so-called "cassational filters" for minor cases in the current Civil Procedure Code of Ukraine. The authors concluded that it is necessary to give a legitimate definition of the concept of minor cases and clear criteria for their definition as well as the fact that the institution of summary proceeding requires further improvement and development. So, it is considered appropriate to draw attention to motivating the courts` decisions, as well as wider application of the provisions of the principles of proportionality of civil judicial proceedings and cooperation between the parties and the court to ensure the realization of the main task – the effective protection of claimant`s violated rights.

Implementation of international standards of regulation of appeal procedures in current Civil Procedure Code and Economic Procedure Code

Implementation of international standards of regulation of appeal procedures in current Civil Procedure Code and Economic Procedure Code