Lecture No. 2. Principles of civil procedural law

1. The concept and meaning of the principles of civil procedure

Principles of civil procedural law represent the fundamental guiding principles (ideas) enshrined in the current legislation, expressing the essence of the norms of civil procedural law and the main directions of state policy in the field of legal regulation of public relations related to the protection of violated or contested rights, freedoms and legitimate interests of subjects of civil process.

The basic principles of civil procedural law are reflected in the Constitution of the Russian Federation. However, a number of fundamental principles are enshrined in a special normative act of the Code of Civil Procedure of the Russian Federation. Important calling principles of civil procedural law is expressed not so much in the proclamation of the rights and obligations of the subjects of civil procedural legal relations, but in ensuring their real implementation.

2. Organizational principles of civil process

The organizational principles should include those principles that are directly related to the organization of the civil process, on which civil proceedings are based. The underlying principle of the entire system is principle of legality. The principle of legality means that civil proceedings are carried out on the basis of the current legislation and the activities of the court, as well as participants in civil legal relations, cannot go beyond the law. The current legislation of the Russian Federation must be strictly observed by all subjects of civil legal relations in order to ensure the tasks set for civil proceedings - to protect the violated or contested rights and legitimate interests of citizens, as well as legal entities. The principle of legality is implemented at all stages of the civil process in strict accordance with Russian law.

Article 108 of the Constitution of the Russian Federation states, "Justice in the Russian Federation is carried out only by the court. Judicial power is exercised through constitutional, civil, administrative and criminal proceedings. The creation of emergency courts on the territory of the Russian Federation is not allowed." From the imperative norms enshrined in the Constitution of the Russian Federation, it follows principle of administration of justice only by the court. This provision is also enshrined in Art. 5 of the Code of Civil Procedure of the Russian Federation: "Justice in civil cases subordinate to courts of general jurisdiction is carried out only by these courts according to the rules established by the legislation on civil proceedings."

The principle of combining a single and collegial court composition.

when considering civil cases. Civil cases in the courts of first instance according to Art. 7 Code of Civil Procedure of the Russian Federation are considered by judges individually or collectively. Cases on complaints against judicial decisions of justices of the peace that have not entered into legal force are considered on appeal by the judges of the respective district courts alone. Civil cases in the courts of cassation and supervisory instances are considered collectively. Prior to the entry into force of the Code of Civil Procedure of the Russian Federation for certain categories of cases, the collegial composition included one professional judge and two people's assessors. At present, the institute of people's assessors has been abolished, and only professional judges who meet the requirements stipulated by federal Russian legislation can be included in the collegial composition.

Article 120 of the Constitution of the Russian Federation indicates that judges are independent and subject only to the Constitution of the Russian Federation and federal laws. This principle allows us to speak of unlimited power given to the court.

Independence of judges suggests:

1) prohibition of interference in the activities of the court;

2) fixing a strict procedure and grounds for the suspension and termination of the powers of the court;

3) the right of a judge to resign;

4) immunity of a judge;

5) state material and social security corresponding to the status of judges;

6) the impossibility of bringing a judge to any responsibility for expressing his opinion and decision in the administration of justice, unless his guilt in criminal abuse is established by a court decision that has entered into legal force;

7) the responsibility of persons guilty of exerting illegal influence on the judges participating in the consideration of the case.

The independence of judges is ensured and the duty of the judge to strictly comply with the Constitution of the Russian Federation and other laws, by-laws in the administration of justice, as well as their powers; not engage in political and entrepreneurial activities; in off-duty relationships, avoid everything that can undermine the authority of the judiciary, the dignity of a judge or raise doubts about his objectivity, fairness and impartiality; not combine work as a judge with other paid work, except for scientific, teaching and other creative activities.

Justice in civil cases is carried out according to the principle equality before law and court all citizens, regardless of gender, race, nationality, language, origin, property and official status, place of residence, attitude to religion, beliefs, membership in public associations and other circumstances, as well as all organizations, regardless of their organizational and legal form of ownership, location, subordination and other circumstances. This principle provides participants in civil proceedings with equal opportunities to protect violated or disputed rights. The principle of equality of all before the law and the court is a constitutional principle, and in relation to civil proceedings means the ability of the parties to the civil process to present evidence, participate in their study, appeal court decisions, file private complaints, file motions and challenges.

The principle of the state language means that civil proceedings are conducted in Russian or in the state language of the republic, which is part of the Russian Federation. According to Art. 9 Code of Civil Procedure of the Russian Federation in military courts, civil proceedings are conducted in Russian. This principle guarantees participants in civil proceedings who do not speak the state language the opportunity to use the services of an interpreter provided by the court. It should be noted that the criminal law provides for liability, which the interpreter is warned about before performing his duties. Article 307 of the Criminal Code of the Russian Federation of June 13, 1996 No. 63-FZ (Criminal Code of the Russian Federation) provides that a deliberately incorrect translation in court or in the course of a preliminary investigation entails criminal liability in the form of a fine or compulsory works, or correctional labor, or arrest for a term up to 3 months. The same acts related to the accusation of a person of committing a grave or especially grave crime shall be punishable by imprisonment for up to 5 years. In the note, the legislator indicates the grounds for exempting the translator from criminal liability if the translator voluntarily declared a deliberately incorrect translation during the inquiry (preliminary investigation) or trial before the court verdict or court decision. The parties can use not only the services of an interpreter provided by the court, but also the services of an interpreter from outside. The question then becomes how to determine that the translator has given the correct translation? This question remains open. To prevent such a situation, it is necessary to educate citizens in a legal culture, respect for the court. In turn, in relation to the court there should be no doubts about its fairness, impartiality.

The principle of public hearing means that the trial is held in public and can be attended by all persons who have reached the age of 18 years. There are cases when closed session, for example, if:

1) state secrets are disclosed at the court session;

2) the interests of minors are affected;

3) it is about the adoption (adoption) of a child;

4) it is provided by the federal legislation.

According to Art. 10 Code of Civil Procedure of the Russian Federation closed hearing it is also allowed upon satisfaction of the petition of the person participating in the case and referring to the need to preserve commercial or other secrets protected by law, the inviolability of the private life of citizens or other circumstances, the public discussion of which can interfere with the proper consideration of the case or entail the disclosure of these secrets or violation of rights and legal the interests of the citizen. Persons who become aware of information at a closed court session are warned by the court of liability for their disclosure.

3. Functional principles of civil procedure

The principle of dispositivity. In civil proceedings, many procedural scientists call the principle of dispositivity the cornerstone principle [4]. This principle allows persons participating in civil proceedings to dispose of their rights at their own discretion in accordance with the goals and objectives of the civil process. It is necessary to clarify that the principle of discretion applies only to individuals and legal entities, and not to government bodies, whose rights arise from the duties established by law and are included in their competence or powers. For example, on the initiative of a person who has applied to the court for the protection of violated or disputed rights and legitimate interests, civil proceedings are initiated, thus this person has exercised the right to go to court for judicial protection of the violated or disputed right. If the person whose right was violated or challenged had not gone to court, then, accordingly, civil proceedings would not have been initiated. Before the judge makes a judgment, the parties can enter into a settlement agreement. The use of this right entails legal consequences. The court will terminate the proceedings. When implementing the principle of discretion, participants in civil proceedings must not forget that their actions must not contradict the norms of Russian legislation and violate the rights and legitimate interests of other participants in civil proceedings.

Competitiveness principle. According to Art. 12 of the Code of Civil Procedure of the Russian Federation, justice in civil cases is carried out on the basis of competitiveness and equality of the parties. The court, while maintaining independence, objectivity and impartiality, manages the process, explains to the persons participating in the case their rights and obligations, warns of the consequences of the commission or non-commission of procedural actions, assists the persons participating in the case in exercising their rights, creates conditions for a comprehensive and complete study of evidence, the establishment of factual circumstances and the correct application of legislation in the consideration and resolution of civil cases. In civil proceedings, the burden of proof lies with the parties to the civil proceedings. In turn, the principle of competition is an equal opportunity for a person who is charged with violating someone's rights to present, in turn, evidence confirming the correctness of his actions. It seems necessary to note that the principle of competitiveness is poorly implemented in proceedings on cases arising from public legal relations. The parties in this proceeding are the applicant and the person concerned. When an applicant submits an application for violation of his rights and legitimate interests through the issuance of normative acts, the court invites the interested person who issued this normative act. In turn, the interested person proves the legitimacy of the adoption of the normative act and that the normative act does not infringe on the rights and legitimate interests of a citizen, legal entity. Upon confirmation of the compliance of the normative act with the norms of Russian legislation, the trial ends and a judgment is issued.

The principle of equality of arms indicates the existence of equal procedural rights, as well as the availability of judicial protection. Each person whose right has been violated has the right to apply to the court for the protection of violated or disputed rights in accordance with the procedure established by civil law. It seems necessary to raise the issue of the availability of judicial protection for low-income citizens or citizens with incomes slightly above the subsistence level. In order to apply to the court, it is necessary to study Russian legislation, correctly draw up a statement of claim, statement or complaint. Many citizens are unable to do this, and they are forced to resort to the help of a lawyer. The legal assistant in this case will be a lawyer whose services are not cheap. For lack of funds, citizens cannot apply for legal assistance to lawyers. The way out of this situation is the creation of free legal aid clinics. This will allow low-income citizens, as well as citizens with an income slightly above the subsistence level, to receive qualified legal assistance, advice and defend their violated or contested rights and legitimate interests in court. In the Code of Civil Procedure of the Russian Federation, along with the principle of competitiveness and equality of the parties, there was an objective truth, the proof of which was mandatory for the court.

The principle of immediacy based on the need for the court to examine the evidence presented in the courtroom. The court is obliged to listen to the parties and other persons participating in the case, since only with a full and objective study of written and material evidence is it possible to make a correct and lawful court decision.

The principle of combining writing and publicity in civil litigation. According to this principle, the parties may orally present their thoughts on the stated requirements in the court session. Oral speech allows you to determine the meaning of what was said through intonation, phrases, which, in turn, allows you to establish the intentions of the parties. At the time when the parties orally state their arguments on the circumstances of the case, the secretary of the court session shall keep a record of the court session, which reflects every word spoken by the parties.

Author: Gushchina K.O.

<< Back: Civil procedural law (The concept of civil procedural law and civil procedure. Subject and method of civil procedure. Methods and forms of protecting the violated rights of subjects of civil legal relations. Stages of civil proceedings. Types of civil proceedings. System of civil procedural law. Sources of civil procedural law)

>> Forward: Civil procedural legal relations (The concept of civil procedural legal relations. Prerequisites for the emergence of civil procedural legal relations. Civil procedural legal capacity. Subjects of civil procedural legal relations. The court as the main participant in civil procedural legal relations)

We recommend interesting articles Section Lecture notes, cheat sheets:

▪ General electronics and electrical engineering. Crib

▪ Theory of Government and Rights. Crib

▪ Innovation management. Crib

See other articles Section Lecture notes, cheat sheets.

Read and write useful comments on this article.

<< Back

Latest news of science and technology, new electronics:

The existence of an entropy rule for quantum entanglement has been proven 09.05.2024

Quantum mechanics continues to amaze us with its mysterious phenomena and unexpected discoveries. Recently, Bartosz Regula from the RIKEN Center for Quantum Computing and Ludovico Lamy from the University of Amsterdam presented a new discovery that concerns quantum entanglement and its relation to entropy. Quantum entanglement plays an important role in modern quantum information science and technology. However, the complexity of its structure makes understanding and managing it challenging. Regulus and Lamy's discovery shows that quantum entanglement follows an entropy rule similar to that for classical systems. This discovery opens new perspectives in the field of quantum information science and technology, deepening our understanding of quantum entanglement and its connection to thermodynamics. The results of the study indicate the possibility of reversibility of entanglement transformations, which could greatly simplify their use in various quantum technologies. Opening a new rule ... >>

Mini air conditioner Sony Reon Pocket 5 09.05.2024

Summer is a time for relaxation and travel, but often the heat can turn this time into an unbearable torment. Meet a new product from Sony - the Reon Pocket 5 mini-air conditioner, which promises to make summer more comfortable for its users. Sony has introduced a unique device - the Reon Pocket 5 mini-conditioner, which provides body cooling on hot days. With it, users can enjoy coolness anytime, anywhere by simply wearing it around their neck. This mini air conditioner is equipped with automatic adjustment of operating modes, as well as temperature and humidity sensors. Thanks to innovative technologies, Reon Pocket 5 adjusts its operation depending on the user's activity and environmental conditions. Users can easily adjust the temperature using a dedicated mobile app connected via Bluetooth. Additionally, specially designed T-shirts and shorts are available for convenience, to which a mini air conditioner can be attached. The device can oh ... >>

Energy from space for Starship 08.05.2024

Producing solar energy in space is becoming more feasible with the advent of new technologies and the development of space programs. The head of the startup Virtus Solis shared his vision of using SpaceX's Starship to create orbital power plants capable of powering the Earth. Startup Virtus Solis has unveiled an ambitious project to create orbital power plants using SpaceX's Starship. This idea could significantly change the field of solar energy production, making it more accessible and cheaper. The core of the startup's plan is to reduce the cost of launching satellites into space using Starship. This technological breakthrough is expected to make solar energy production in space more competitive with traditional energy sources. Virtual Solis plans to build large photovoltaic panels in orbit, using Starship to deliver the necessary equipment. However, one of the key challenges ... >>

Random news from the Archive The Vaccine Mystery 04.10.2016 The flu vaccine reduces the risk of stroke in diabetics but increases it in heart patients. It would seem that the flu is weakly associated with a stroke or heart attack: everyone knows that if you endure a cold on your feet, you can get an unpleasant complication, but if you follow the doctor's requirements, it is unlikely. However, modern medical statistics allows you to look for completely non-obvious connections between events. So, researchers from London's King's College, led by Dr. Esther Vamo, worked with British statistics for 2003-2010 and chose among patients those who suffer from type 2 diabetes. There are more than 123 thousand such patients in the database. Analysis of the data showed that annual flu vaccination reduced their risk of heart attack and stroke by 22% and 30%, respectively. Moreover, the mortality among them was 24% less. From the flu, protection worked worse - the number of visits to the clinic for influenza and pneumonia decreased by 15%. What does it mean to get vaccinated against the flu to protect yourself from a stroke or heart attack? There is a pitfall here, noticed by the same researchers: the vaccine has a miraculous effect only on diabetics. And in the cores, the vaccine, on the contrary, increases the risks. The answer to the question why this happens, the doctors do not.

Other interesting news:

▪ Perhaps Leonardo was an Arab

▪ Processors Intel Xeon E5-2600/1600 v3

▪ The wind generator works in any weather

▪ Stem cells for muscle regeneration

▪ Mosquito trap

News feed of science and technology, new electronics

Interesting materials of the Free Technical Library:

▪ section of the site Metal detectors. Article selection

▪ article Money is the nerve of war. Popular expression

▪ article What science is often called the science of sophomores and white rats? Detailed answer

▪ article Certification of the organization of work on labor protection

▪ article Electronic insect exterminator. Encyclopedia of radio electronics and electrical engineering

▪ article Who touched the mirror? Focus secret. Focus Secret

Leave your comment on this article:

All languages ​​of this page

Arabic	Hebrew	Polish
Bengali	Hindi	Portuguese
Chinese	Italian	Spanish
English	Japanese	Turkish
French	Korean	Ukrainian
German	Malay	Vietnamese

Home page | Library | Articles | Website map | Site Reviews

www.diagram.com.ua
2000-2024