Procedural Analogy In Civil And Arbitration Of Procedure Of Russia

Abstract

The article is devoted to the problems of applying procedural analogy during the consideration of civil cases by arbitration courts and courts of general jurisdiction in Russia. The presented publication reveals the content of the procedural analogy, denies the existence of an independent construction of the “analogy of law” due to the fact that it has not acquired distinctive characteristics, and its content is completely blocked by the direct action of the principles of the process. The study deals with the correlation of procedural analogy with similar methods of application of law, such as: the application of general and special rules, the use of referral rules, procedural rules, placed in regulatory acts of another branch of law, and various types of interpretation. The publication proposes a specific classification of procedural analogies depending on the industry of the rule to be applied. The authors disclose the role of the persons participating in the case in matters of applying the procedural law by analogy, while noting the lack of the necessary legal resource to have a significant impact on the allegations of the analogy of the law and the mechanism capable of providing retaliatory action by the judicial authority. The central position of the court in the application of procedural analogy is determined, while the work of the courts of verification instances in the formation of a uniform application of the law by analogy is analyzed, the results and forms of such work are given.

Keywords: Analogyarbitration processcivil procedurecourtlawprocedure

Introduction

The problem of applying procedural rules by analogy has a long history in the science of civil procedural law. However, in the second half of the twentieth century. In our country, the point of view about the incompatibility of the principle of legality in Soviet civil proceedings using a procedural analogy prevailed (Avdyukov, 1970). This view essentially reflected the intentions of the Soviet legislator, who did not directly recognize the possibility of using an analogy in Art. 1 Code of Civil Procedure of the RSFSR.

The situation finally changed with the adoption of the current Code of Civil Procedure of the Russian Federation in 2002, part 4 of art. 1 admitted procedural analogy. Following the civil process, the analogy entered the arbitration process in 2015 (part 5 of article 3 of the APC of the Russian Federation).

However, the normative recognition of analogy is not able to lead to the formation of a highly qualified law enforcement approach, apart from science, to serve as a guide for further improvement of the legislation and its official interpretation.

The difficulty lies in the fact that civil and arbitration processes relate to strict procedural forms, the content of which cannot be established by interested parties, for example, by concluding an agreement, or independently developed by a court. Unlike civil circulation and the arbitration procedure for dispute resolution, which embodies a soft, dispositive form of consideration of cases, legal proceedings in a state court are determined by public law with its characteristic method of legal regulation. The rigorous procedural order is designed to provide participants in the process with guarantees for a fair trial, prevent judicial arbitrariness and eliminate abuses by persons participating in the case. This makes it impossible for any of the participants to arbitrarily change the rules of legal proceedings, including the court. These circumstances, on the one hand, impede the introduction of an analogy in the field of civil and arbitration proceedings, and on the other hand, prevent its misuse, which poses a real threat to the violation of the rights of citizens and organizations.

The use of analogy acts as an adaptive mechanism that allows not only to ensure the stability of established legal regulators, but also their adaptation to changing socio-economic needs.

Problem Statement

The allegations are aimed at improving the work of the Russian courts by setting clearer borders and identifying the grounds for applying the procedural law by analogy in the consideration and resolution of civil cases.

Research Questions

To achieve the goal of the study are the answers to the following questions (objectives of the study):

• What similar legal methods of applying the rule of law should a procedural analogy be distinguished from?

• Are there certain types of procedural analogy?

• What is the influence of the persons participating in the case on the decision on the admissibility of the application of procedural analogy?

• What determines the central role of the court in the application of the procedural analogy?

Purpose of the Study

The purpose of the study is to obtain deeper knowledge and understanding of the phenomenon of procedural law, such as analogy.

Research Methods

The consideration of problems associated with the use of analogy is based on general scientific research methods involving industry methods, which together ensured the reliability of the results of the work.

The basis of the study was the method of formal logic, by applying which the authors established the content of the concept of “analogy of the law”, the logical relationship between it and related categories, which are not varieties of analogy of the law. Using the aforementioned method, the authors also classified the cases of applying the analogy of the law depending on the industry affiliation of the norm applied by analogy and the purpose of the corresponding field of law.

Supporting methods in the study were the methods of comparative study of the arbitration and civil processes, a systematic analysis of positive legal material.

• A comparative study of the arbitration and civil processes resulted in a search for norms governing similar relations in order to use them to fill the gaps in the relevant branch of law.

• A systematic analysis of positive legal material was used to establish the presence or absence of gaps in the legal regulation of procedural relations. The meaning of legal requirements was established in conjunction with the practice of their application, which was also provided by appeal to the methods of legal hermeneutics.

Findings

About the content of the procedural analogy. Current legislation establishes a procedural analogy as a way of regulating relations in two forms - as an analogy of law and a statutory analogy.

First of all, the thesis about the use of the analogy of law, which is understood in codes as an action based on the principles of the administration of justice, attracts attention.

Without going into a theoretical discussion about the nature and content of the principles of the process, it can be noted that their definition through the general provisions of the industry, the rules of a wide spectrum of action or the norms of the highest level of the legal system does not cause objections (Sherstyuk, 2017).

The operation of the principles is ensured by the implementation of special procedural rules, the content of which must be subordinate to the meaning of the principle. In the event of a conflict of norms, the principle, usually of a higher level of action, should be applied. A principle that has not found a specific content in the procedural rules turns into a declarative norm and cannot be applied by the court. The content of the principle can be revealed both through the analysis of specific legislative provisions, and through the rules formulated by the doctrine and law enforcement practice. If the content of the principle can be established in one way or another, then he himself is able to act as a regulator of specific procedural relations. At the same time, the application of a broad-based norm does not indicate the presence of a legal gap, and the legal relations arising on its basis should be classified as resolved. In this regard, it is unlikely that when applying the principles of the process it makes sense to talk about any kind of analogy, even if it is right. To date, the analogy category does not have other semantic loads.

Thus, the only really existing and applicable in practice way of applying the analogy is the analogy of the law.

However, under the statutory analogy, the modern law enforcer understands such diverse things that have nothing to do with the application of similar rules. To get a clearer picture of the cases of the actual application of the procedural law by analogy, it is worth highlighting a number of situations in which a reference to the application of the analogy can be made erroneously.

First, the use of reference norms cannot be regarded as a statutory analogy. So, for example, part 3 of article 72 of the Commercial procedure code of the Russian Federation stipulates that the provision of evidence is carried out by the arbitral tribunal in accordance with the rules established by this Code to secure the claim. Here we are not talking about applying, by analogy, the procedure established for securing a claim to relations developing in the field of providing evidence. The legislator regulated these relations through the use of a reference norm, not allowing legislative gaps.

Secondly, an appeal to special rules will not be an application by analogy. Art. 13 of the Federal Law "On Enforcement Proceedings" sets out the requirements for enforcement documents. Such rules are absent in the Code of Civil Procedure of the Russian Federation: their application by the court when issuing a writ of execution does not mean that the judge acts by analogy. We are talking about the fact that a special norm, placed in another legislative act, is subject to application.

Thirdly, the application of rules of a higher level or a wider spectrum of action is not an analogy. So, according to Part 1 of Art. 226 of the Commercial procedure code of the Russian Federation, cases in a simplified procedure are considered by the arbitration court in accordance with the general rules of action proceedings, taking into account the features established by Ch. 29 commercial procedure code of the Russian Federation. There is no application of the rules of the lawsuit by analogy, the legislator claims that they, as the rules of a higher level, apply to simplified proceedings.

Fourth, it should not be considered as an analogy the application of procedural rules, placed in regulatory acts of a different industry. The norms of the civil process are often placed in legislative acts of the substantive branches of law - in the Civil Code of the Russian Federation, the investigative committee of the Russian Federation, etc. Thus, the provisions on the inadmissibility of certain evidence (for example, clause 1 of article 162 of the Civil Code of the Russian Federation), enshrined in acts of a formally different branch of law, are cases of using ordinary procedural rules, but not applying substantive law acts by analogy to procedural relations.

Fifth, the application of discretionary norms cannot be confused with analogy. According to the rules of Art. 212 Code of Civil Procedure of the Russian Federation, a court or judge may reverse a court decision for immediate execution if, due to special circumstances, slowing down its execution may result in significant damage to the recoverer or it may not be possible to execute. In each specific case, the court itself decides whether there are grounds for appealing the decision for immediate execution. The discretion of the court formed the basis for constructing a procedural rule that was not related to the use of analogy and did not require its use.

Sixthly, an expansive interpretation of the law is not an analogy. So, an indication that under Art. 202 Code of Civil Procedure of the Russian Federation, it is allowed to seek clarification of the execution of a court decision, including on the question of exactly what amount to be recovered from the debtor, should not be interpreted as an analogy of the law, since this is an extensive interpretation of the existing norm. However, the application of this rule in relation to enforcement agencies not specified in Art. 202 Code of Civil Procedure of the Russian Federation, carried out through the application by analogy of Art. 179 agribusiness of the Russian Federation.

Seventh, it is not an analogy to clarify the content of a rule through the application of clarifications from the highest judicial authorities, the use of practice to resolve specific cases or scientific doctrine. By filling out the relevant procedural rule with specific content at the expense of the provisions of the doctrine or judicial practice, the law enforcer remains within the framework of the same rule. Thus, the clarification that the transfer of the right protected in court by universal or singular succession entails the transfer of the right to reimbursement of court costs, since the right to such reimbursement is not inextricably linked with the personality of the participant in the process, and that in this case the court replaces the person participating in the case with his assignee (Article 44 of the Code of Civil Procedure of the Russian Federation, Article 48 of the Arbitration Procedure Code of the Russian Federation), discloses the indicated provisions of the procedural legislation, and does not lead to their application by analogy.

A clear example of resolving the issue by analogy can be considered an indication of the Supreme Court of the Russian Federation that “Chapter 21 of the Code of Civil Procedure of the Russian Federation, which regulates the procedure for drawing up the minutes of the court session, its content, the procedure for familiarizing with the protocol, does not contain a norm according to which, based on written statements and at the expense of persons involved in the case, their representatives can be made copies of the protocols. However, this circumstance ... does not mean that these persons are not entitled to receive a copy of the protocol, since in the absence of a rule of procedural law regulating relations arising in the course of civil proceedings, federal courts of general jurisdiction and justices of the peace apply a rule regulating similar relations (analogy of the law) ... ". By analogy, the provisions of Part 8 of Art. 259 Code of Criminal Procedure and part 1 of article 207 Commercial procedure codeRF.

Conclusion

Summing up the narration, we can draw the following conclusions:

1. The only really existing and applicable in practice way to fill in the gaps in law is the analogy of the law. In the case of applying the principles of the relevant procedural branch of law, we can say that they themselves are able to act as a regulator of specific procedural relations. Moreover, the application of a broad-based norm does not indicate the presence of a legal gap, and legal relations arising on its basis should be attributed to the number of settled.

2. The analogy of the law should be distinguished from related situations, when in reality there is no gap in the law (an “imaginary” gap), and the court and other participants in the process turn to other techniques for applying legal norms, in particular, reference norms, special rules, and higher-level rules or more broadly, the procedural rules contained in regulations of a different industry, norms implying judicial discretion, an expanded interpretation of the law, clarifications from the highest judicial authorities, practice in resolving specific cases or scientific doctrine. The erroneous use of improper technology can lead to a violation of the equality of legal opportunities and, ultimately, to arbitrariness.

3. Depending on the industry affiliation, applied by analogy, the norm and purpose of the relevant branch of law, three varieties of analogy are distinguished in the civil process: 1) the intra-industry analogy; 2) the intersectoral procedural analogy; 3) the intersectoral material analogy. The significance of the proposed classification lies in the fact that when establishing a gap in the law of the court, first of all, it is necessary to consider the possibility of applying an intra-industry analogy, since we are talking about the application of the rules governing the closest procedural relations. Intersectoral analogy is permissible only when the norm contained in an act of another branch of law meets the requirements of similarity: in its purpose, in the subject composition and nature of the disputes to be resolved.

4. In the application of procedural analogy, the decisive role is assigned to the court. First of all, these are the courts of first instance, since it is they who are obliged to bring up for discussion the question of the legal qualification of a particular social relationship and determine what legal norms should be applied to established circumstances. Courts of higher instances verify the correct application of procedural rules by lower courts by analogy, as well as summarize judicial practice, give explanations on the admissibility of using analogy on certain issues. The practical meaning of such a generalization of judicial practice on the application of analogy is that its results can be used to further improve legislation. In other words, clarifications of the Supreme Court of the Russian Federation can serve as a qualitative source for the formation of legislative norms, as a result of which the very basis for applying procedural rules by analogy will be eliminated - a gap in law.

References

1. Alekseyevskaya, E. I. (2015). Novyy kodeks grazhdanskogo sudoproizvodstva: kakim emu byt? Pravo, 4(16). https://lawjournal.hse.ru/data/2015/08/04/1085266230/Alexeevskaja.pdf
2. Avdyukov, M. G. (1970). The principle of legality in civil proceedings. Izdatelstvo Moskovskogo universiteta.
3. Ilalutdinov, A. I. (2015). The construction of the rule of law. Bulletin of St. Petersburg University Pravo. 1, 23 – 30. https://lawjournal.spbu.ru/article/view/3146/2911
4. Kapustina, M. A. (2016). Legal space: the formation of a systematic concept of legal regulation. Vestnik Sankt-Peterburgskogo universiteta. Pravo. 2(4), 11. https://lawjournal.spbu.ru/article/view/2713/2526
5. Kozhokar, I. P. (2018). On legal defects and legal defectology. Bulletin of Perm University. Vestnik Permskogo universiteta. Yuridicheskiye nauki, 42, 558-586. http://www.jurvestnik.psu.ru/images/2018-4/2018-4-1.pdf
6. Mikryukov, V. A. (2016). The analogy of the law and the analogy of law in the positions of the highest courts of the Russian Federation. Sovremennoye pravo, 11, 53 – 57.
7. Osokina, G. L. (2004). Civil process. Obshchaya chast. Yurist.
8. Ponkin, I. V., & Redkina, A. I. (2017). Classification as a method of scientific research, in particular in legal science. Vestnik Permskogo universiteta. Yuridicheskiye nauki, 37, 250 – 259. http://www.jurvestnik.psu.ru/images/2017-3/2017-3-1.pdf
9. Samsonov, N. V. (2019 a). To the question of the place and significance of judicial practice and judicial precedent in domestic civil procedural law. Vestnik Sankt-Peterburgskogo universiteta. Pravo, 2, 293–310. https://doi.org/10.21638/spbu14.2019.207
10. Samsonov, N. V. (2019 b). Decisions of the Plenum of the Supreme Court of the Russian Federation as a source of domestic civil procedural law. Pravo. Zhurnal Vysshey shkoly ekonomiki, 2, 139 – 162. https://law-journal.hse.ru/data/2019/06/26/1490725062/samsonov.pdf
11. Schubert, T. E. (2016). The influence of judicial practice on the legislative process. Zhurnal rossiyskogo prava, 4, 160-170.
12. Sherstyuk, V. M. (2017). Selected Works. Izdatelskiy dom «Gorodets».
13. Sultanov, A. R. (2016). On effective remedies against unreasonable restoration of procedural terms. Vestnik grazhdanskogo protsessa, 1, 56-77.
14. Terentyeva, L. V. (2018). The general legal presumption of jura novit curia and the industrial presumption of jura aliena novit curia of the international civil process. Pravo. Zhurnal Vysshey shkoly ekonomiki, 3, 195-213. https://law-journal.hse.ru/data/2018/10/29/1141973055/terentyeva.pdf
15. Vaipan, V. A. (2018). Gaps in law as a factor in distorting the principle of social justice in judicial practice. Vestnik arbitrazhnoy praktiki, 5, 3-6.
16. Zhuravlev, G. A. (2018). Problems of appealing against rulings on the appointment of a forensic examination, Yustitsiya, 2, 28-34.