Ensuring justice, as a principle of justice, when considering cases in civil proceedings. Principles of GPP Fairness of judgment in civil proceedings

Civil procedural activity is based on certain initial provisions that reflect its most characteristic properties and the basis for implementation. Such provisions are called the principles of civil procedure, which are objective in their content. They are determined by the economic and social realities that exist in society and reflect the level of its development. These principles are of a normative nature, i.e. they are enshrined in the law. The vast majority of the principles of Russian procedural law are enshrined in the Constitution.

3) competitiveness and equality of the parties;

4) immediacy, orality and continuity of the trial.

The second group of principles includes:

1) the administration of justice only by the courts (Article 5 of the Code of Civil Procedure);

2) the principle of reasonableness (Article 6.1 of the Code of Civil Procedure);

3) equality of all before the law and the court (Article 6 of the Code of Civil Procedure);

4) individual and collegiate consideration of civil cases (Article 7 of the Code of Civil Procedure);

5) the independence of judges and their subordination only to the Constitution and federal law (Article 8 of the Code of Civil Procedure, Article 120 of the Constitution);

6) the state language of civil proceedings (Article 9 of the Code of Civil Procedure);

7) publicity of the trial (Article 10 of the Code of Civil Procedure, Article 123 of the Constitution *);

8) immunity of judges.

At the same time, it should be recognized that there is currently no generally accepted system of principles. In this regard, in the literature one can meet the author's judgments, presented as principles. This situation is caused by both external and internal factors. For example, in connection with the ratification in 1998 by the Russian Federation of the Convention for the Protection of Human Rights and Fundamental Freedoms of November 4, 1950, some authors began to single out the principle of legal certainty, which was formed under the influence of legal positions developed by the European Court of Human Rights.

2.3. Principles of the organization of justice

The principle of legality(Article 15 of the Constitution, Articles 1, 2, 11 of the Code of Civil Procedure, etc.). Under this principle in civil procedural law is understood the precise and steady application of laws by the competent authorities of the state, observance (execution) by all participants in the process, state and non-state institutions and organizations, officials and citizens of the prescriptions of the Constitution, laws and other corresponding regulations. The main provisions of this principle are enshrined in Art. 15 of the Constitution.

The establishment of the rule of law in all spheres of state and public life is possible only if the principle of legality is consistently implemented. So, in part 1 of Art. 15 of the Constitution says that it has the highest legal force, direct effect and is applied throughout Russia. Laws and other acts must not contradict the Constitution.

The provision on the direct effect of the Basic Law of the State is of fundamental importance for law enforcement practice. It directly prescribes to be guided by the norms enshrined in it in cases where the sectoral legislation contains certain gaps or contradictions, which is especially characteristic of the legislation of the transitional period. Part 2 Art. 15 of the Constitution establishes the general nature of the operation of the principle of legality - the obligation of state authorities, local self-government bodies, officials, citizens and their associations to comply with the Constitution and laws.

The principle of legality is enshrined in a number of other articles of the Constitution (Articles 4, 10,16,19, etc.); in relation to the civil process, it is also fixed and developed in numerous norms of civil procedural law. The provisions of the principle of legality are diverse, they are constantly being modernized and improved. For example, in Part 2 of Art. 120 of the Constitution says: “The court, having established, when considering a case, that an act of a state or other body does not comply with the law, makes a decision in accordance with the law.”

This constitutional rule applies to any acts of any body or official - decrees of the President of the Russian Federation, resolutions of the chambers of the Federal Assembly, resolutions and orders of the Government of the Russian Federation, orders and instructions from ministries and departments, heads of institutions and enterprises, acts of subjects of the Russian Federation , CHI, executive bodies and public associations.

Disposability principle(Articles 3, 4, 39, 44, 137 of the Code of Civil Procedure). Dispositivity (from Latin disponio - I dispose, I arrange) is one of the main civil procedural principles, which provides the opportunity to dispose of procedural remedies. The parties and other persons participating in the case may freely dispose of their substantive and procedural rights. The court assists them in exercising these rights and controls the legality of their administrative actions, since the legal incompetence of the parties and other persons involved in the case may complicate the protection of their rights and legitimate interests by them. The freedom of the participants in the process, expressed in the ability to dispose of the granted substantive rights and procedural means of their protection, is conditioned by the freedom of individual rights guaranteed by the Constitution.

The plaintiff has the right to change the basis or subject of the claim, increase or decrease the amount of claims or refuse the claim, the defendant has the right to recognize the claim, the parties can end the case by amicable agreement (part 1 of article 39 of the Code of Civil Procedure). Only in civil proceedings, the parties are free to choose decisions on contentious issues of substantive law, as well as to influence the dynamics of the process with the help of procedural means.

The principle of dispositivity also determines the content of the norms of the Code of Civil Procedure regulating the composition of persons participating in the case, the norms on alternative and contractual jurisdiction, etc.

The operation of the dispositive principle has its own characteristics in the proceedings on cases arising from public legal relations.

The principle of competitiveness and equality of the parties(Article 12 of the Code of Civil Procedure, Article 123 of the Constitution). In accordance with this principle, justice in civil cases is carried out on the basis of competitiveness and equality of the parties. First of all, the principle of competition is realized in the process of proving.

In general terms, the operation of the adversarial principle in the process of proving in lawsuit proceedings is as follows:

1) the court itself does not collect evidence, but creates conditions for the participation of the parties in the adversarial process and the provision of evidence by them, resolves issues about the circumstances to be proved, the relevance and admissibility of evidence;

2) the parties themselves are obliged to prove the circumstances to which they refer as the basis for their claims and objections;

3) it depends on the parties themselves whether to participate in the adversarial process or not (whether to support the plaintiff's claim, whether to object to the defendant's claim or admit it, whether to present evidence in support of their claims and objections, to conduct the process independently or through your representative, etc.).

Avoidance of participation in the adversarial process may lead to adverse consequences for the evading party. Briefly, the principle of competition in civil proceedings can be expressed by the phrase: “If you didn’t prove it, then you lost.”

Immediacy, orality and continuity of the trial (Article 157 of the Code of Civil Procedure). The immediacy of the trial is a fundamental provision and the most important guarantee of a reasoned decision. In order to make a lawful and justified decision and protect judges from extraneous influences when examining evidence, the law formulates a requirement according to which the court of first instance, when considering a case, is obliged to directly examine the evidence on it.

Immediacy is closely related to oralness, the essence of which lies in the fact that during the trial all materials relevant to the case, all procedural actions and all questions arising in the course of it, are presented, discussed or performed orally, and the court must listen to oral testimony of interrogated persons, read out protocols and other documents, hear orally and discuss explanations, petitions and statements of the parties, listen to court pleadings, announce decisions made by him, etc.

Litigation is proceedings proceeding in the form of litigation. It is during the litigation that the judges and participants in the process learn about the circumstances of the case, the evidence presented by each of the parties to substantiate their position in the case. Orality is a separate, independent principle of legal proceedings, filled with its own content and not coinciding with immediacy in its specific manifestations. Unlike the latter, which requires the court to receive and examine original evidence, orality extends its effect to both original and derivative evidence.

It is broader than immediacy in the sense that it characterizes the entire trial, while immediacy concerns only the judicial investigation. However, not all types of evidence are available to oral perception, but only those that are clothed in the form of testimony. Neither material nor written evidence can be taken orally. In this case, orality is expressed in the fact that the evidence mentioned is fully or partially disclosed.

So, oral communication creates the necessary conditions for the process to be public, and the materials of the trial to become the property of the population, so that the judges have the opportunity to directly perceive certain data from the primary source, and the participants in the process actively investigate the evidence.

The continuity of the trial, as well as immediacy and orality, is the most important guarantee of the objectivity of the court's conclusions. The court session in each case takes place continuously, with the exception of the time appointed for rest. Until the end of the consideration of the initiated case or until the postponement of its proceedings, the court is not entitled to consider other civil, criminal and administrative cases.

Functional principles of civil procedure

Administration of justice by the courts(Article 118 of the Constitution, Article 5 of the Code of Civil Procedure). The administration of justice only by the court is a principle enshrined in Art. 118 of the Constitution, in relation to all activities of the judiciary. The judicial system in Russia consists of the Constitutional Court of the Russian Federation, courts of general jurisdiction, arbitration courts. In addition, due to the specifics of the organization and the procedural form of activity, the judiciary is placed in special conditions, which gives them the opportunity to understand the most difficult circumstances, correctly interpret and apply the law, and make a lawful, justified, fair decision.

All this is of very important fundamental importance for the allocation of the court as a body of the state, specially designed to perform the functions of justice. Since the state has entrusted the administration of justice only to the court, it categorically forbids anyone to engage in judicial activities and apply state coercion to offenders in the form of justice. In accordance with Art. 118 of the Constitution, justice is carried out only by the court.

This provision is specified in Part 1 of Art. 4 of the Federal Law “On the Judicial System of the Russian Federation”, which says: “Justice in the Russian Federation is administered only by courts established in accordance with the Constitution of the Russian Federation and this Federal Constitutional Law. The creation of emergency courts and courts not provided for by this Federal Constitutional Law is not allowed. Justice in civil cases subordinated 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 reasonableness(Article 6.1 of the Code of Civil Procedure). According to the principle of reasonableness, judicial proceedings in the courts and the execution of court decisions are carried out within a reasonable time. Trial of cases in courts is carried out within the time limits stipulated by the Code of Civil Procedure. The extension of these terms is permissible in cases and in the manner established by the Code of Civil Procedure, but at the same time, legal proceedings must be carried out within a reasonable time. When determining a reasonable term for the trial, which includes the period from the date of receipt of the statement of claim or application to the court of first instance until the day the last court decision on the case is made, such circumstances as the legal and factual complexity of the case, the behavior of the participants in the civil process, the sufficiency and effectiveness of the actions of the court, carried out in order to consider the case in a timely manner, and the overall duration of the proceedings in the case.

Equality of all before the law and court(Article 19 of the Constitution, Article 6 of the Code of Civil Procedure). The implementation of justice on the basis of equality of citizens before the law and the court as a principle of civil process is provided for by Art. 19 of the Constitution, which states:

1. Everyone is equal before the law and the court.

2. The state guarantees equality of rights and freedoms of man and citizen, regardless of gender, race, nationality, language, origin, property and official status, place of residence, attitude to religion, beliefs, membership in public associations, as well as other circumstances . Any form of restriction of the rights of citizens on the grounds of social, racial, national, linguistic or religious affiliation is prohibited.

3. Men and women have equal rights and freedoms and equal opportunities for their realization.”

The equality of citizens before the law and their equality before the court are provisions that are organically connected with each other, but this does not deprive each of them of independent content.

The above main content of this principle allows us to analyze the relationship between its two provisions, although it does not fully reveal the essence of each of them. At the same time, it should first of all be noted that the equality of citizens before the law is a broader concept than their equality before the court, because the first characterizes the legal status of citizens in all areas of society, and the second concerns only the sphere of administration of justice.

The equality of citizens before the court is predetermined by their equality before the law, since the court is obliged to act on the basis of legislation that does not create advantages or restrictions depending on social, property and official status, race, nationality and religion. Without equality before the law, equality before the courts is also impossible. Under the equality of citizens before the court, it should be understood that they are all responsible to the courts that are part of a single system, while not having any advantages and not being subject to any restrictions.

Justice in civil cases is carried out on the basis of equality before the law and the courts of 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, form of ownership, location, subordination and other circumstances.

Sole and collegiate consideration of civil cases (Article 7 of the Code of Civil Procedure). Civil cases in the courts of first instance are considered by the judges of these courts individually or, in the cases provided for by federal law, jointly. If (in accordance with the requirements of the Code of Civil Procedure) the judge is granted the right to consider civil cases and perform separate procedural actions, then he acts on behalf of the court. 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. Decisions of district courts that have not entered into legal force are considered on appeal by judges of regional and equivalent courts. The consideration of civil cases in the courts of cassation and supervisory instances is carried out collegially.

It should be noted, that at the moment, at first instance, the only case of collegial consideration of cases is provided for by Art. 260.1 of the Code of Civil Procedure, namely, cases on the dissolution of election commissions, referendum commissions are considered by the court collectively, consisting of three professional judges.

Independence of judges and their subordination only to the Constitution and federal law (sg. 8 of the Code of Civil Procedure, art. 10, 120-122 of the Constitution). In the Russian Federation, the independence of the judiciary is enshrined primarily in the Constitution. In Art. 10 of the Basic Law says: “State power in the Russian Federation is exercised on the basis of division into legislative, executive and judicial. Legislative, executive and judicial authorities are independent”. Supplement and specify this provision of Art. 120-122 of the Constitution, specifically devoted to the judiciary. So, according to Art. 120 judges are independent and subject only to the Constitution and federal law. Judges are non-removable (art. 121) and inviolable (art. 122).

By virtue of Art. 5 of the Federal Law “On the Judicial System of the Russian Federation”, the courts exercise judicial power independently, regardless of anyone else’s will, subject only to the Constitution and this Law. Judges involved in the administration of justice are independent and subject only to the Constitution and federal law. Guarantees of their independence are established by the Constitution and federal law.

The court, having established, when considering a case, that an act of a state or other body, as well as an official, is inconsistent with the Constitution, federal constitutional law, federal law, generally recognized principles and norms of international law, an international treaty of the Russian Federation, the constitution (charter) of a subject of the Russian Federation, the law of a subject RF, makes a decision in accordance with the legal provisions that have the greatest legal force. The Russian Federation cannot issue laws and other normative legal acts that abolish or diminish the independence of the courts, the independence of judges.

Persons guilty of exerting unlawful influence on judges participating in the administration of justice, as well as other interference in the activities of the court, shall bear the responsibility provided for by federal law. The appropriation of the power of the court is punishable in accordance with the criminal law. The independence of judges is an important condition for the existence of an authoritative and independent judiciary in the country, capable of impartially and objectively administering justice, effectively protecting the rights and legitimate interests of citizens and the state. In Art. 120 of the Constitution states that judges are independent and subject only to the Constitution and federal law.

Information on non-procedural appeals of state bodies, local governments, other bodies, organizations, officials or citizens received by judges in civil cases pending in their proceedings, or to the chairman of the court, his deputy, the chairman of the judicial staff or the chairman of the judicial collegium in civil cases pending before the court, is subject to publicity and bringing to the attention of the participants in the trial by posting this information on the official website of the court on the Internet and is not a basis for conducting procedural actions or making procedural decisions in civil cases.

Justice- an independent area of ​​\u200b\u200bstate activity, free from anyone else's leadership and supervision. The state power, which has enshrined the independence of judges by law, is itself obliged to observe the principle proclaimed by it. Meanwhile, the independence of judges is an important condition for the existence of an authoritative and independent judiciary in the country, capable of impartially and objectively administering justice, effectively protecting the rights and legitimate interests of citizens and the state.

The language of civil justice(Article 26 of the Constitution, Article 9 of the Code of Civil Procedure). This principle ensures the accessibility of the court for the population, the possibility of real exercise of procedural rights by all participants in the process, and the educational impact of legal proceedings. The significance of the principle of the state language of legal proceedings lies in the fact that it is a necessary condition for the real provision of another democratic principle - publicity of legal proceedings.

All this led to the consolidation of the principle of the state language of legal proceedings at the constitutional level. So, part 2 of Art. 26 of the Constitution proclaims: "Everyone has the right to use their native language." This right extends not only to Russian citizens, but also to stateless persons and foreigners. The Russian language, which is the main means of interethnic communication between the peoples of Russia, has the status of a state language throughout the territory of the Russian Federation (clause 1, article 68 of the Constitution, article 3 of the Law of the Russian Federation of October 25, 1991 No. 1807-1 "On the languages ​​of the peoples of the Russian Federation") However, a single state language, which took place in pre-revolutionary Russia, when the Russian language was mandatory in the courts, the Constitution does not provide.

Republics have the right to establish their state languages. In public authorities, compulsory medical insurance, state institutions, they are used along with the state language of the Russian Federation (clause 2, article 68 of the Constitution).

Legal proceedings and office work in the Constitutional Court of the Russian Federation, the Armed Forces of the Russian Federation and other law enforcement agencies of the Russian Federation are conducted in the state language of the Russian Federation.

The legal proceedings of the republics within the Russian Federation are conducted in the state languages ​​of these republics and (or) in the language of the majority of the foreign-speaking population densely residing in any locality, as well as in the state language of the Russian Federation in accordance with the legislation of the Russian Federation (Article 18 of the Federal Law "On Languages peoples of the Russian Federation”).

Another guarantee of rights for participants in legal proceedings who do not speak the language in which legal proceedings are conducted is the right of each of them to speak in court in their native language, provided for by this norm. Violation of the law on providing a person who does not speak the language in which legal proceedings are conducted with an interpreter is a significant violation of the law (Article 4 of the Federal Law “On the Languages ​​of the Peoples of the Russian Federation”).

Civil proceedings are conducted in Russian - the state language of the Russian Federation or in the state language of the republic, which is part of the Russian Federation and in whose territory the relevant court is located. In military courts, civil proceedings are conducted in Russian. Persons participating in the case and not knowing the language in which civil proceedings are conducted shall be explained and provided with the right to give explanations, conclusions, speak, file petitions, file complaints in their native language or in any freely chosen language of communication, as well as to use the services of an interpreter.

Thus, the Constitution (Articles 26, 68) provided the subjects of civil proceedings with ample opportunities for active participation in judicial actions, regardless of the degree of proficiency in the language of legal proceedings. This fully corresponds to the general trend in the regulation of justice towards the consistent and comprehensive development and improvement of guarantees for the rights of citizens.

Publicity of the trial(Article 123 of the Constitution, Article 10 of the Code of Civil Procedure). The constitutional formula of the principle of publicity is as follows: “The trial of cases in all courts is open. Hearing a case in a closed session is allowed in cases stipulated by federal law” (Article 123 of the Constitution).

The essence of this principle is that the proceedings in closed court sessions are carried out in cases containing information constituting a state secret, the secret of the adoption (adoption) of a child, as well as in other cases, if this is provided for by federal law. Proceedings in closed court sessions are also allowed upon satisfaction of the petition of the person participating in the case and referring to the need to maintain 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 correct consideration of the case or entail a disclosure of these secrets or a violation of the rights and legitimate interests of a citizen.

The persons participating in the case and other persons present at the performance of the procedural action, in the course of which the relevant information may be revealed, are warned by the court about the responsibility for their disclosure. On the consideration of the case in a closed court session in respect of all or part of the trial, the court shall issue a reasoned ruling. During the consideration of the case in a closed court session, the persons participating in the case, their representatives, and, if necessary, also witnesses, experts, specialists, translators shall be present. The case in a closed court session is considered and resolved in compliance with all the rules of civil proceedings.

At an open court session, the persons participating in the case and the citizens present at it have the right to record the course of the trial in writing, as well as by means of audio recording. Photographing, video recording, broadcasting of the court session on radio and television are allowed with the permission of the court. Court decisions are announced publicly, with the exception of cases where such announcement of decisions affects the rights and legitimate interests of minors.

Immunity of judges(Article 122 of the Constitution). Ego means that no one can deprive a judge of his liberty, prosecute or subject him to other measures of coercion without following a special procedure defined by federal law. The inviolability also extends to the dwelling and service premises (office) of the judge, the transport and means of communication used by him, his correspondence, documents and property belonging to him. Penetration into the dwelling or office of a judge, his personal or transport used by him, conducting searches, searches or seizures there, personal searches of a judge are allowed only in connection with the investigation of a criminal case against this judge with the sanction of the appropriate court.

Principles of civil procedural law (CPL)- these are the main provisions of this branch of law, which reflect its specificity and content.

Significance of GSP principles:

1. The principles of GSP promote the unification of norms and institutions.
2. The principles of the GSP serve as the initial basis for the interpretation of the rules of the GSP.
3. The principles of the GPP are the democratic foundations of the judiciary.
4. The principles of the GSP serve as starting points when comparing the GSP of Russia and foreign countries.

Basic principles of civil procedural law (GPL)

1. According to the source of principles:

• constitutional principles
• Industry principles

2. By the number of industries:

• Intersectoral principles
• Special Industry Principles

3. According to the object of regulation:

• Principles of the organization of justice
• Procedural and legal principles

Basic principles of civil procedural law (CPL):

1. Justice in the Russian Federation is carried out only by the court (Article 18 of the Constitution, Article 5 of the Code of Civil Procedure of the Russian Federation);
2. Equality of all persons before the law and the court (Article 19 of the Constitution, Article 6 of the Code of Civil Procedure of the Russian Federation);
3. Sole and collective consideration of court cases (Articles 7, 14, 260 of the Code of Civil Procedure of the Russian Federation);
4. Independence of judges (Article 120 of the Constitution of the Russian Federation, Article 8 of the Code of Civil Procedure of the Russian Federation);
5. The principle of the state language, consideration of court cases is carried out only in the state language;
6. The principle of publicity;

Judicial principles:

1. The principle of legality;

2. The principle of discretion;

3. The principle of competitiveness;

4. The principle of oral proceedings;

5. The principle of procedural equality;

6. The principle of immediacy in the study of evidence;

7. The principle of continuity of proceedings;

8. The principle of judicial truth;

9. The principle of accessibility of judicial protection;

10. The principle of combining oral and written language;

11. The principle of validity;

12. The principle of procedural validity;

13. The principle of judicial leadership;

14. Equality of all before the court: justice is carried out by a single judicial system; unified civil procedure form; equal procedural rights and obligations.

The judge is independent and subject only to the law. Any interference in the work of a judge is punishable by law.

Judge is independent:

• From higher authorities and officials;
• From the conclusion of the prosecutor on the case;
• From the prosecutor's opinion on the case;

Judges Guarantees:

• Legal guarantees (Articles 5, 12, 16 of the Code of Civil Procedure of the Russian Federation);
• Political guarantees: a judge cannot belong to or participate in the work of political parties and movements, a judge cannot engage in entrepreneurial activities;
• Economic guarantees: these are legal provisions that establish material and social security for judges;

The principle of the state language enshrined in Art. 10 of the Federal Law “On the Judicial System in the Russian Federation”, Article 9 of the Code of Civil Procedure of the Russian Federation, Part 1 of Article 9 of the Code of Civil Procedure of the Russian Federation - the main content of the principle, Part 2 of Article 9 of the Code of Civil Procedure of the Russian Federation (where the guarantees of the principle of the state language are fixed: it is valid at all stages of the process and applies to all types of judiciary).

The principle of public hearing enshrined in Article 123 of the Constitution of the Russian Federation, Article 9 of the Federal Constitutional Law "On the Judicial System in the Russian Federation", Article 10 of the Code of Civil Procedure of the Russian Federation, Clause 1 of Article 6 of the Convention "On the Protection of Human Rights and Fundamental Freedoms", Part 1 of Article 10 of the Code of Civil Procedure of the Russian Federation (the main content of the principle ). Part 2 of Article 10 of the Code of Civil Procedure of the Russian Federation provides for exceptions to the general rule (trial of cases in a closed court session). Mandatory options: a) cases related to state secrets; b) cases related to the adoption or adoption of a child. Optional: for example, paternity cases.

The principle of legality is an intersectoral principle (Part 2 of Article 15 of the CRF). The content of the principle of legality:

1. Priority of the judicial form of protection of the right;

2. In cases stipulated by law, the court has the right to invalidate a normative legal act;

3. The court has the right not to apply an act of a state or other body that is contrary to the Constitution of the Russian Federation and laws;

4. The court is entrusted with the duty of verifying the legality of the decisions of arbitration courts;

5. The court has the right to control the course of enforcement of a judicial or non-judicial act;

Guarantees for the implementation of the principle of legality:

1. Possibility of removal of the judge;

2. The obligation to notify interested parties of the time and place of the court session;

3. The possibility of the plaintiff and the defendant to have a representative in a civil case;

4. Written judgment;

The plaintiff has the right:

• increase or decrease the amount of the claim;
• change the subject of the claim (requirement to the defendant);
• change the basis of the claim (the circumstances on which the claims are based)
• withdraw the claim;

The parties may end the case with an amicable agreement (disposing of the object of the process, Part 1, Article 39 of the Code of Civil Procedure of the Russian Federation).

Part 2, Article 39 of the Code of Civil Procedure of the Russian Federation - the control function of the court over the commission of such administrative actions as:

• withdrawal of the claim;
• recognition of the claim;
• settlement agreement of the parties;

The principle of competitiveness (enshrined in articles 12, 56, 57, 358 of the Code of Civil Procedure of the Russian Federation) determines the possibilities and obligations of the participants in proving and defending their legal position in the case (Article 56 of the Code of Civil Procedure of the Russian Federation).

The principle of procedural equality of the parties (Article 123 of the CRF): parties in civil proceedings have equal opportunities to defend their rights and interests (Article 35 of the Code of Civil Procedure of the Russian Federation).

The principle of oral proceedings enshrined in Article 157 of the Code of Civil Procedure of the Russian Federation.

The principle of continuity of proceedings is enshrined in Article 157 of the Code of Civil Procedure of the Russian Federation, and an exception to this rule is contained in Article 199 of the Code of Civil Procedure of the Russian Federation.

The principle of immediacy in the study of evidence(Article 157 of the Code of Civil Procedure of the Russian Federation) means that each judge, considering the case, must personally perceive the evidence collected in the case and the decision must be made only on the basis of this evidence. Exceptions to this rule: a) the institution of letters of request (Article 62, 63 of the Code of Civil Procedure of the Russian Federation); b) the institution of providing evidence (Article 64-66 of the Code of Civil Procedure of the Russian Federation); c) interrogation of witnesses during the adjournment of the trial (Article 170 of the Code of Civil Procedure of the Russian Federation).

Principles of civil procedure:

• the principle of legality;
• the principle of the independence of judges;
• the principle of irremovability of judges;
• the principle of administration of justice only by the court;
• the principle of combining the sole and collegiate principles in the consideration and resolution of civil cases;
• the principle of equality of citizens and organizations before the law and the courts;
• the principle of publicity of the trial;
• the principle of the state language of legal proceedings;
• the principle of accessibility of the judiciary and the provision of free legal assistance to certain categories of the population;
• dispositivity principle;
• the principle of competitiveness;
• the principle of judicial or legal truth;
• the principle of formal procedural equality of the parties;
• the principle of combining oral and written language;
• the principle of immediacy of the study of evidence;
• the principle of continuity of judicial proceedings;
• the principle of applying the analogy of law or law.

The principle of legality

The principle of legality affirms the supremacy and unity of the law, the equality of citizens before the law and the court, the content and operation of law, starting with its formation in the process of lawmaking and ending with the application and other types of implementation of law.

It is one of the main intersectoral criteria for determining the quality and effectiveness of the civil process. The content of the principle of legality is enshrined in international acts of Russia, the Constitution of the Russian Federation (hereinafter referred to as the “OZ” or the “Basic Law”) and articles of each branch of law, including civil procedural law. Its content is reduced to the exact and steady observance, execution and application by the court of laws and other regulations.

The procedural content of the principle boils down to the fact that the court builds its activities on the observance of the law, and the material and legal content of the principle is expressed in its application in order to restore the violated legality.

The content of the principle covers a variety of legal and organizational means that ensure the correct application of substantive and procedural law in conflict situations. First of all, it includes a system of procedural means to maintain procedural discipline in legal proceedings and sanctions for the incorrect application of legal norms.

The principle of legality also regulates the procedural position of judges and other participants in legal proceedings, the procedure for considering and resolving cases, protecting the rights and legitimate interests of citizens and organizations.

The principle of legality is manifested in all stages of the civil process. All actions of the court from the moment the application is accepted to the issuance of a court decision must be carried out in strict accordance with the rules of law.

The principle of the independence of judges

Art. 120 of the Basic Law states that judges are independent and subject only to the OP and federal law. This principle can be divided into two components of the rule: judges are subject to the OZ and federal law, and if the normative act contradicts them, the court has the right not to apply it. The subordination of judges to the exact instructions of substantive and procedural law means their independence from officials, various bodies and their acts, as well as other influences.

The independence of judges is also ensured by other guarantees. The most important of them are enshrined in the Public Order: the irremovability of judges, a special procedure for the termination or suspension of powers, inviolability and the possibility of bringing to criminal liability only in the manner determined by federal law.

The independence of a judge is ensured by:

• the legal procedure for the administration of justice; prohibition, under the threat of responsibility, of anyone's interference in the administration of justice;
• the established procedure for the suspension and termination of the powers of a judge;
• the right of a judge to resign;
• immunity of the judge;
• the system of bodies of the judiciary;
• providing the judge at the expense of the state with material and social security corresponding to his high status.

The judge, members of his family and their property are under special protection of the state. The internal affairs bodies are obliged to take the necessary measures to ensure the safety of the judge, members of his family, the safety of their property, if the judge receives an appropriate application.

The Judicial Department under the Supreme Court of the Russian Federation and its bodies in the constituent entities of the Russian Federation are taking measures to create the conditions necessary for the judicial activities of courts of general jurisdiction and military courts, as well as to ensure its personnel, organizational and resource support. The Supreme Arbitration Court of the Russian Federation takes measures to create the conditions necessary for the activities of arbitration courts.

The independence of a judge is ensured by the system of bodies of the judicial community, which are specially created to express the interests of judges. These bodies consider topical problems of the work of courts, their staffing, organizational support, as well as the legal and social status of judges.

The principle of irremovability of judges

In accordance with the OP (art. 121), judges are irremovable. This means that once a judge has been given powers in the manner prescribed by law, these powers are not limited to a specific period. Exceptions to this rule are specifically provided for by law.

The irremovability of a judge means that he retains his position until the judge retires of his own free will. Irremovability is one of the essential guarantees of the independence of a judge.

The powers of a judge may be terminated on other grounds described in the Law “On the Status of Judges”, however, a judge whose powers have been terminated may appeal the decision of the Qualification Collegium to the Supreme Court of the Russian Federation.

According to the Law, the powers of a judge may be terminated or suspended only in the manner and on the grounds established by federal law.

In accordance with the Law “On the Status of Judges”, the powers of a judge are suspended by a decision of the Qualification Board of Judges.

Suspension of a judge's powers, except for the case when he is placed in custody as a measure of restraint, does not entail the termination of payment to the judge, and if he is declared missing, his family's salary or a reduction in its amount. Suspension of the powers of a judge, with the exception of the case of electing him into custody as a preventive measure, does not entail a decrease in the level of other types of material and social security of the judge and does not deprive him of the guarantees of inviolability established by the Law.

The law obliges judges in the exercise of their powers, as well as in off-duty relations, to avoid actions that could diminish the authority of the judiciary, the honor and dignity of a judge or raise doubts about his objectivity, fairness and impartiality.

In case of annulment of the decision of the qualification board of judges on the termination of the powers of a judge or the annulment of a judgment of conviction against him or a court decision, the judge shall be subject to reinstatement in his former position.

The principle of the administration of justice only by the court

The essence of this principle lies in the fact that justice consists in the consideration and resolution by state courts in the procedural order established by law of specific court cases with the issuance of lawful and reasonable court decisions on them.

Two practical implications follow from this:

• other state and public bodies should not violate judicial competence and try to resolve cases referred by law to the exclusive jurisdiction of the court;
• resolution of legal issues by other bodies within their competence is not justice.

A strictly defined procedural procedure for the consideration and resolution of civil cases is typical only for legal proceedings. The consideration of civil cases by other bodies or organizations is not clothed in a strict procedural form. This principle works:

• in the right of the court to control the legality of the actions of administrative bodies and officials in the event that they apply civil law;
• in the control of the court over the legality of decisions of arbitration courts during their execution;
• in compulsory execution by a bailiff - an executor under the control of the court of judicial acts;
• in making a final decision by the court in cases where a certain dispute is resolved by several bodies, including the court.

The principle of combining sole and collegial consideration of civil cases

Civil cases in the courts of first instance are considered by the judges of these courts individually or, in the cases provided for by federal law, collectively, consisting of three or more professional judges.

Consideration of cases in the cassation and supervisory procedure is carried out by the court consisting of the presiding judge and at least two judges.

Along with the collegial consideration of civil cases in the courts of first instance, the legislator also allows their individual consideration. Thus, the justice of the peace considers cases alone.

In the case when the judge single-handedly considers civil cases and performs certain procedural actions, the judge acts on behalf of the court. 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 by the courts collectively.

The principle of equality of citizens and organizations before the law and the court

Administration of justice in civil cases on the basis of equality before the law and court of all citizens, regardless of their origin, social and property status, race and nationality, gender, education, language, attitude to religion, type and nature of occupation, place of residence and other circumstances, as well as all organizations, regardless of their organizational and legal form, form of ownership, location, subordination and other circumstances (Article 19OZ, Article 6 of the Code of Civil Procedure of the Russian Federation).

Equality before the law and the court is ensured by the fact that each court case is considered in the same order, in the same procedural forms, with the same amount of guarantees for the persons participating in the case. This achieves the possibility of equal satisfaction of the legitimate demands of citizens interested in the outcome of the case, and an equal opportunity for them to defend their rights before the court.

Justice in cases referred by law to the jurisdiction of a court of general jurisdiction is carried out only by courts that are part of a single system of courts of general jurisdiction. This system provides an objective consideration and resolution of these cases between citizens and organizations. Any special courts to consider disputes between citizens and organizations or for citizens, depending on the features listed in Art. 6 Code of Civil Procedure RFnet.

The material basis for the equality of rights and freedoms of citizens is that all of them are legally or actually equal in relation to the instruments and means of production. This predetermines their political equality and equality in all other areas.

The principle of public hearing

The principle of publicity of judicial proceedings presupposes an open hearing of cases in all courts. Hearing of cases in a closed session is allowed in cases provided for by federal law, while cases are considered and resolved in compliance with all rules of civil proceedings.

The court shall issue a reasoned ruling on the trial of the case in a closed court session in respect of all or part of the trial.

When considering a case in a closed court session, the persons participating in the case, their representatives, and, if necessary, also witnesses, experts, specialists, translators shall be present.

The persons participating in the case and the citizens present at an open court session have the right to record the course of the trial in writing, as well as by means of audio recording. Photographing, video recording, broadcasting the court session on radio and television are allowed with the permission of the court.

Court decisions are announced publicly, except in cases where such announcement of decisions affects the rights and legitimate interests of minors.

Depending on the circle of persons who can be acquainted with the activities of the courts, there are publicity for the parties and other persons involved in the case (publicity in the narrow sense of the word) and publicity for the people.

Publicity in the broad sense of the word has an independent meaning and consists in the right of the presence of unauthorized persons in the courtroom to get acquainted with everything that is happening, i.e. this presupposes that the legal proceedings must take place in the presence of a certain audience, spectators, public.

The principle of the state language of legal proceedings

• legal proceedings are conducted in Russian - the state language of the Russian Federation or in the state language of the republic, which is part of the Russian Federation and on the territory of which the relevant court is located; in military courts, civil proceedings are conducted in Russian;
• persons participating in the case and not knowing the language in which civil proceedings are conducted are explained and provided with the right to give explanations, conclusions, speak, make petitions, file complaints in their native language or in any freely chosen language of communication; and use the services of an interpreter.

The court is obliged to explain to persons who do not know the language in which the proceedings are conducted their right to use the language they know and the services of an interpreter. The right to choose the language in which a person gives explanations at a court session belongs only to that person.

Non-compliance with the principle of the national language of legal proceedings is considered in judicial practice as a gross violation of the norms of the Code of Civil Procedure of the Russian Federation. The decision of the court of first instance is subject to cancellation, regardless of the arguments of the cassation appeal, presentation, if during the consideration of the case the rules on the language in which the court proceedings are conducted were violated.

The principle of accessibility of the judiciary and the provision of free legal assistance for certain categories of the population

Legislative regulation of public relations in the provision of legal assistance should be carried out with an appropriate balance between such constitutionally protected values ​​as guaranteeing qualified and accessible (including in some cases free) legal assistance, including the possibility of establishing a fair amount of its payment.

The state policy in the field of providing citizens with free legal assistance is a set of organizational, legal, socio-economic, informational and other measures taken in order to guarantee the right of citizens to receive free legal assistance.

The main directions of state policy in the field of providing citizens with free legal aid are determined by the President of the Russian Federation.

The state policy in the field of providing citizens with free legal aid is implemented by federal state authorities, state authorities of the constituent entities of the Russian Federation, local governments, as well as individuals and legal entities established by this Federal Law and other federal laws providing free legal aid.

The provision of free legal aid is based on the following principles:

• ensuring the implementation and protection of the rights, freedoms and legitimate interests of citizens;
• social justice and social orientation in the provision of free legal assistance;
• availability of free legal assistance for citizens in cases established by the legislation of the Russian Federation;
• control over compliance by persons providing free legal assistance with the norms of professional ethics and quality requirements for the provision of free legal assistance;
• establishing requirements for the professional qualifications of persons providing free legal assistance;
• free choice by a citizen of the state or non-state system of free legal aid;
• objectivity, impartiality in the provision of free legal assistance and its timeliness;
• equality of citizens' access to free legal aid and non-discrimination of citizens in its provision;
• ensuring confidentiality in the provision of free legal assistance.

Disposability principle

The principle of discretion means the ability of persons participating in the case to dispose of the rights granted by law and the means of their protection at their own discretion.

The principle of disposability lies in the possibility of persons participating in the case to dispose of their substantive and procedural rights, as well as the means of their protection.

The dispositiveness of the civil process is predetermined by the dispositiveness of civil law and indicates a certain autonomy of the subjects of the disputed material legal relationship.

The first component of this principle is the existence of rights and the equality of these rights for the relevant categories of subjects of civil procedural legal relations. Without the existence of rights, it is impossible to talk about the possibility of disposing of them.

The second component is the possibility of exercising these rights, the availability of choice in the means of one's protection. So, the plaintiff has the right to file a claim or refrain from doing so, can change the subject or basis of the claim, refuse the claim, agree to the conclusion of a settlement agreement. The defendant may recognize the claim in full or in part, file a counterclaim, express objections (of a material, procedural nature) against the claim, and agree to the terms of the settlement agreement.

Moreover, during the entire trial process, interested parties can actively influence it. To achieve this goal, they have the right:

• determine the defendant;
• go to court;
• determine the scope and subject of judicial protection
• involve procedural accomplices or bring claims against several persons at once;
• carry out the succession;
• to appeal against and submit a submission to a court decision in an appeal, cassation, supervisory procedure, and to a ruling - in private;
• exercise other rights.

These powers of the persons participating in the case are always combined with the powers of the court, since the freedom to dispose of substantive and procedural rights is not absolute. Otherwise, the court will lose its leading position in the process and will not be able to resolve civil cases.

Competitiveness principle

Justice in the Russian Federation is carried out on the basis of competitiveness and equality of the parties (part 3 of article 123 of the Law).

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.

Thus, the elements of competition are: the rights of the parties and other persons participating in the case; ensuring their procedural activity in substantiating their position in the dispute; procedural assistance of the court to legally interested subjects of legal proceedings.

The principle of judicial or legal truth

The principle of judicial truth means that the movement of a trial in a specific civil or other legal case should go in the direction of using all the means provided for by civil procedural norms for reliable, and in case of impossibility or inexpediency provided for by law, the probable establishment of circumstances that are important for the correct resolution of the case according to essence. Since the main task of civil proceedings is the correct consideration and resolution of civil cases in order to protect the violated or contested rights, freedoms and legally protected interests of the subjects of legal relations, the principle of judicial truth, first of all, means the right and duty of the court to establish really existing facts that have importance for the correct resolution of the case. To do this, the court is obliged, at the stage of preparing the case for trial, to correctly determine the range of legal facts to be established (the subject of proof) and put them up for discussion, even if the interested parties did not refer to any of them. During the trial of a case, the court must:

• ensure a complete, comprehensive and objective clarification of all the circumstances of the case, the rights and obligations of the parties;
• to resume consideration of the case on the merits, if it considers it necessary to clarify new circumstances that are relevant to the case;
• at the time of the deliberation on the case, when making a decision, to determine which circumstances relevant to the case have been established and which have not been established.

If there is a need to clarify new circumstances, a ruling is issued to resume the trial. In addition, the court has the right to go beyond the claims stated by the plaintiff and in cases provided for by federal law. Since the court's knowledge of legally significant circumstances for the case is carried out with the help of judicial evidence, the second component of the principle of judicial truth is formed by the provisions of the Code of Civil Procedure, which determine the procedure for the court to work with evidence (evidentiary material). Despite the fact that the law imposes the duty of proving legal facts and presenting evidence on interested parties, the court determines which circumstances are relevant to the case, which party should prove them, and submits the circumstances for discussion, even if the parties did not refer to any of them. .

The principle of judicial truth determines such behavior of the court in the process of considering and resolving a legal case, which is aimed at establishing legal facts and assessing evidence in compliance with the rules established by law, therefore, judicial acts are considered true until they are canceled in the manner prescribed by law.

The principle of formal procedural equality of the parties

The principle of equality of parties in civil proceedings is a manifestation of the general principle of equality of citizens before the law and the court.

In accordance with the principle of formal procedural equality of the parties, each party must be given the same procedural opportunities; the court cannot make a decision without hearing the defendant's explanations.

Its essence is expressed in the equal opportunities of the parties established by law and ensured by the court to actually use the procedural means of judicial protection of their rights and interests. At the court session, the parties have equal rights to challenge, petition, give explanations, participate in the examination of evidence. In the debate, the parties speak an equal number of times, and the right of the last word always belongs to the defendant and other procedural actions provided for by the Code of Civil Procedure of the Russian Federation.

The equality of the parties is determined by the reality of the use of the rights granted. In addition to equal rights, the parties bear equal obligations.

The principle of combining oral and written

The trial takes place orally, but any process combines oral and written principles.

The principle of oral and written proceedings establishes the rule according to which legal proceedings in court can take place both orally and in writing. In the first case, the procedural material is presented to the court orally, in the second - in the form of written procedural documents. The main thing in oral proceedings is the oral competition of the parties before the court, in writing - the exchange of pleadings.

Orality of legal proceedings allows you to perform the tasks facing legal proceedings: to correctly consider and resolve cases, since thanks to oral communication it is easier to assess the reliability of evidence, ask the necessary questions and get answers to them.

The principle of oral proceedings does not exclude the need for its documentation, recording, which is done to facilitate verification of the appealed decision.

Sessions are also held orally in the cassation and supervisory instances, but there the principle of orality is valid with exceptions, because the definition is based not only on what was said at the board meeting, but also on the written materials of the cases.

The principle of immediacy of the study of evidence

This principle lies in the fact that the judges must personally perceive the evidence collected in the case, and the resolution of the case must be based on the evidence examined and verified in the court session.

The principle of immediacy does not prohibit the court from using derivative evidence (in the absence of initial evidence), but it does not have the right to resort to derivative evidence in the presence of initial evidence.

Full implementation of the principle of immediacy is not always possible. The law also contains a number of deviations from this principle.

Some evidence the court cannot perceive personally and directly, because they are far from the location of the court. In this case, the court considering the case instructs the local court to directly examine the evidence (to interrogate witnesses, inspect on the spot, etc.), and itself uses the protocols and other materials collected during the execution of the assignment.

Before the case is considered, there may be a risk of disappearance of evidence in the future. In this case, the judge takes measures to secure evidence, and then the materials collected in order to secure evidence are used in the court session - protocols for the interrogation of witnesses, examination of material evidence.

The principle of continuity of proceedings

The principle of the continuity of the trial is that the trial should take place continuously or in parts in the sequence established by law, when there are insignificant time intervals between the parts of the trial, so that the judges who focus on the consideration of the case can get a whole impression of case, which they must reflect in the decision taken after consideration of the case on the merits.

The court session in each case takes place continuously, with the exception of the time appointed for rest. Until the end of the consideration of the initiated case or until the adjournment of its proceedings, the court is not entitled to consider other cases.

When adjourning the trial of the case, the court has the right to interrogate the witnesses who have appeared, if all the persons participating in the case are present at the court session; then their secondary call is allowed in exceptional cases.

Disruption of the continuity of the process may lead to the fact that the immediacy of the evidence perceived by the judges will be weakened by the impressions received in the hearing of the new case.

The operation of the principle of continuity requires that the judgment be issued by the court immediately after the end of the consideration of the case in the same court session. Having finished the trial of the case, the court retires to make a decision in the deliberation room and must draw up a complete reasoned decision that corresponds in content to all the requirements of the law.

The principle of applying the analogy of law or law

No legislation is able to take into account all the diversity of social relations that require legal regulation. Therefore, in the practice of law enforcement, it may turn out that certain circumstances of a legal nature are not in the sphere of legal regulation.

The presence of gaps in the law is undesirable and indicates certain shortcomings of the legal system. However, they are objectively possible, and in some cases inevitable. Gaps in the law arise for the following reasons:

• due to the fact that the legislator was unable to cover all life situations requiring legal regulation by the wording of the normative act;
• as a result of deficiencies in legal technique;
• due to the constant development of social relations.

The only way to fill gaps in the law is for the appropriate authority to adopt the missing rule or group of rules of law. However, the rapid elimination of gaps in this way is not always possible, since it is associated with the rule-making process. But the bodies applying the rules of law cannot refuse to resolve a particular case due to the incompleteness of the legislation. To avoid this, there is an institution of analogies in law, meaning the similarity of life situations and legal norms. It provides for two operational methods of overcoming, filling in the gaps - the analogy of the law and the analogy of the law.

The analogy of the law is applied when there is no rule of law governing the particular life case under consideration, but there is another rule in the legislation that regulates relations similar to it.

The analogy of law is used when the legislation does not contain a rule of law governing a similar case, and the case is decided on the basis of general principles of law. First of all, we are talking about such principles of law as justice, humanism, equality before the law, etc. Such principles are enshrined in the Constitution and other laws.

The analogy of law and the analogy of law are exclusive means in law and require compliance with a number of specific conditions that ensure their correct application. Therefore, in order to use the analogy of law, it is necessary:

• make sure that there is no specific rule of law in the legislation designed to regulate such cases;
• find in the legislation a norm regulating a similar case, and on its basis decide the case (an analogy of the law);
• in the absence of a legislative norm, rely on the general principle of law and decide the case on its basis (analogy of law);
• give a reasoned explanation of the reasons for applying the analogy of law or the analogy of law to this case.

They had no less ancient legal culture than the "descendants" of the Romans and Hellenes themselves. During this period, the level of recognition by the official legislation of the existing legal customs and the “struggle” of living and official law is exceptionally high. The inconsistency and inconsistency of the legislation is a reflection of the acute political, religious and ideological confrontation that took place at that time. The most significant achievements of this period in the development of Byzantine law are the emergence of a practically new family law, which adopted the basic ideas of the Christian religion, and criminal law, which subsequently underwent only minor modifications. In legislative acts, new foundations for organizing the administrative management of the empire find their design.

The political victory of the opponents of the iconoclasts was reflected in a new stage of legislative reform at the end of the ninth century. The emperors of the Macedonian dynasty, in the ideological justification of the reform, pointed to the need to “purify good legal provisions” from the “perversions” introduced into them by the iconoclasts1.

E.A. Nakhov

The principle of justice in the draft Code of Civil Procedure of the Russian Federation

The Law of the Russian Federation on the amendment to the Constitution of the Russian Federation dated February 5, 2014 abolished the Supreme Arbitration Court of the Russian Federation2. The Supreme Court of the Russian Federation is currently the highest judicial body for civil cases, resolution of economic disputes, criminal, administrative and other cases, jurisdictional courts formed in accordance with federal constitutional law, exercises judicial supervision over the activities of these courts in the procedural forms provided for by federal law and gives clarifications on issues of judicial practice. The Judicial Collegium for Economic Disputes of the Supreme Court of the Russian Federation was formed within the structure of the Supreme Court of the Russian Federation3.

1 Kazhdan A.P. Vasiliki as a historical source // Byzantine Times. M., 1958. T. 14. S. 58.

2 On the Supreme Court of the Russian Federation and the Prosecutor's Office of the Russian Federation: Law of the Russian Federation on the amendment to the Constitution of the Russian Federation of February 5, 2014 No. 2-FKZ // Ros. newspaper. No. 27. 07.02.2014.

3 On the Supreme Court of the Russian Federation: Feder. constitutional law dated 05.02.2014 No. 3-FKZ (as amended on 04.11.2014) // Ros. newspaper. No. 27. 07.02.2014.

In connection with the next stage of judicial reform, the need for reform, including procedural legislation, is being discussed. At present, the Concept for Reforming Civil Procedure Legislation (hereinafter referred to as the Concept)1 has been adopted and published, the adoption of which will result in the development of a unified Code of Civil Procedure of the Russian Federation (hereinafter referred to as the Draft CSC RF).

In the light of the foregoing, it is necessary to point out the provisions of the Draft CSC of the Russian Federation that need detailed study.

Paragraph 1.3 of the Concept states that the main provisions of the Code should consolidate the principles of legal proceedings, reflecting the standards of fair trial generally recognized in the community of democratic states, without which legal proceedings cannot claim the role of justice. The draft Code needs to specify the relevant provisions of the Constitution of the Russian Federation2 and international legal acts that establish universally recognized standards of justice. In connection with the ambiguous approach of the courts to the observance of the rules established by law on the jurisdiction of civil and administrative cases, when setting out the principle of administering justice in civil and administrative cases only by the courts to whose competence they are assigned by law, the wording of Part 1 of Art. 47 of the Constitution of the Russian Federation. It also seems necessary, along with legality, to formulate the principle of justice, which the Constitutional Court of the Russian Federation and the European Court of Human Rights insistently urge to observe during the trial3.

Based on Art. 6 of the Convention for the Protection of Human Rights and Fundamental Freedoms, each in the event of a dispute about his civil rights and

1 The concept of the unified Civil Procedure Code of the Russian Federation (approved by the decision of the Committee on Civil, Criminal, Arbitration and Procedural Legislation of the State Duma of the Federal Assembly of the Russian Federation dated 08.12.2014 No. 124(1)). URL: http://www.consultant.ru/document/cons_doc_LAW_172071/ (date of access: 03/09/2015).

2 The Constitution of the Russian Federation (adopted by popular vote on December 12, 1993) (subject to amendments introduced by the Laws of the Russian Federation on amendments to the Constitution of the Russian Federation of December 30, 2008 No. 6-FKZ, of December 30, 2008 No. 7-FKZ, of February 5, 2014 No. 2-FKZ, dated July 21, 2014 No. 11-FKZ) // Collected Legislation of the Russian Federation. 08/04/2014. No. 31. Art. 4398.

3 Convention for the Protection of Human Rights and Fundamental Freedoms (Concluded at Rome on 11/04/1950) (as amended on 05/13/2004) (together with “Protocol [No. 1]” (Signed in Paris on 03/20/1952), “Protocol No. 4 on ensuring certain rights and freedoms in addition to those already included in the Convention and its first Protocol” (Signed in Strasbourg on September 16, 1963), “Protocol No. 7” (Signed in Strasbourg on November 22, 1984)) // Bul. intl. contracts. No. 3. 2001).

any criminal charge against him, is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. The judgment is announced publicly, but the press and the public may be excluded from all or part of the proceedings for reasons of morality, public order or national security in a democratic society, or when the interests of minors so require or to protect the privacy of the parties, or - to the extent that, in the opinion of the court, is strictly necessary - in special circumstances where publicity would violate the interests of justice.

The content of the principle of justice is interpreted by the European Court of Human Rights and the Constitutional Court of the Russian Federation in conjunction with the right to judicial protection and the principle of legal certainty. By virtue of Art. 46 of the Constitution of the Russian Federation, everyone is guaranteed judicial protection of his rights and freedoms. Moreover, the right to judicial protection, which is generally implemented through a combination of various procedural means, is one of the rights not subject to restriction (Article 56, Part 3 of the Constitution of the Russian Federation). At the same time, justice by its very nature can be recognized as such only if it meets the requirements of fairness and ensures effective restoration of rights (Article 14 of the International Covenant on Civil and Political Rights of 19661; Article 8 of the Universal Declaration of Human Rights of 1948 d.2). Justice as a fundamental idea finds its consolidation in the introductory provisions to the Constitution of the Russian Federation. An erroneous judgment cannot be regarded as a fair act of justice and must

be fixed 3. The state is obliged to ensure the full exercise of the right to judicial protection, which must be fair, competent and effective. This duty

1 International Covenant on Civil and Political Rights (Together with the “Optional Protocol to the International Covenant on Civil and Political Rights”) (Adopted on December 16, 1966 by Resolution 2200 (XXI) at the 1496th plenary session of the UN General Assembly) // Byul. intl. contracts. 1993. No. 1. S. 3-6.

2 Universal Declaration of Human Rights (principled by the UN General Assembly on 10.12.1948) // Ros. newspaper. 12/10/1998.

3 In the case of checking the constitutionality of paragraph 5 of part two of Article 371, part three of Article 374 and paragraph 4 of part two of Article 384 of the Code of Criminal Procedure of the RSFSR in connection with complaints from citizens K.M. Kulneva, V.S. Lalueva, Yu.V. Lukashova and I.P. Serebrennikov: Resolution of the Constitutional Court of the Russian Federation of February 2, 1996 No. 4-P // Vestn. Constitutional Court of the Russian Federation. No. 2. 1996.

follows from the generally recognized principles and norms of international law, in particular, enshrined in Art. 8 and 29 of the Universal Declaration of Human Rights, as well as Art. 2 (paragraph 2 and subparagraphs "a" paragraph 3) of the International Covenant on Civil and Political Rights.

According to Art. 14 (para. 1) of the International Covenant on Civil and Political Rights, everyone has the right to a fair and public hearing by a competent, independent and impartial court established by law. A judicial decision cannot be recognized as fair and just, and judicial protection - complete and effective, if a judicial error has been made. Therefore, Art. 14 (para. 6) of the International Covenant provides that a judicial decision is subject to review if "any new or newly discovered circumstance undeniably proves the existence of a judicial error." The inability to review an erroneous judicial act diminishes and limits the right of everyone to judicial protection, which is unacceptable. Therefore, the legislator, when establishing the procedure for the administration of justice, is obliged to provide a mechanism (procedure) for correcting such errors, including at the stage of revising the court decision due to newly discovered circumstances. By virtue of Art. 15 (part 4) of the Constitution of the Russian Federation, the generally recognized principles and norms of international law and international treaties of the Russian Federation are an integral part of its legal system, and an international treaty of the Russian Federation takes precedence over the law in the presence of a conflict between them. By ratifying the Convention for the Protection of Human Rights and Fundamental Freedoms, the Russian Federation recognized the jurisdiction of the European Court of Human Rights as mandatory for the interpretation and application of the Convention and its Protocols in cases of alleged violation by the Russian Federation of the provisions of these treaty acts (Federal Law of March 30, 1998 No. 54 -FZ)1. Thus, like the Convention for the Protection of Human Rights and Fundamental Freedoms, the decisions of the European Court of Human Rights - insofar as they, based on generally recognized principles and norms of international law, interpret the content of the rights and freedoms enshrined in the Convention, including the right of access to court and fair justice - are an integral part of the Russian legal system, and therefore should be taken into account by the federal legislator when regulating public relations and law enforcement agencies when applying the relevant rules of law. Revealing the constitutional content of the right to judicial protection, the Constitution

1 On the ratification of the Convention for the Protection of Human Rights and Fundamental Freedoms and its Protocols: Feder. Law of March 30, 1998 No. 54-FZ // Ros. newspaper. No. 67. 04/07/1998.

The Constitutional Court of the Russian Federation expressed the following legal positions: the inability to review an erroneous judicial act is not consistent with the universal requirement in legal proceedings for effective restoration of rights through justice that meets the requirements of fairness, diminishes and limits this right; within the framework of the judicial protection of rights and freedoms, it is possible to appeal to the court the decisions and actions (inaction) of any state bodies, including the judiciary1. The right to judicial protection guaranteed by the Constitution of the Russian Federation implies the creation by the state of the necessary conditions for an effective and fair trial of the case in the court of first instance, where all issues significant for determining the rights and obligations of the parties are to be resolved. The mistakes made by the court of first instance must be corrected by the court of second instance in procedures that are closest to the proceedings in the court of first instance. At the same time, as follows from the legal position formulated by the Constitutional Court of the Russian Federation in Resolution No. 11-P2 of November 17, 2005, the right to a fair hearing of the case within a reasonable time by an independent and impartial court also implies the finality and stability of judicial acts that have entered into legal force. force, and their execution; this is the reason for the transfer of the main burden of reviewing the decisions of the court of first instance to ordinary (ordinary) courts - appeal and cassation. Proceedings for the revision of court decisions that have entered into force as an additional way to ensure the justice of court decisions suggests the possibility of using it only if the person concerned has exhausted all the usual (ordinary) ways to appeal the court decision before it comes into force. Refusal to use these methods by an interested person should be, in the opinion of the European Court of Human Rights, an obstacle to appeal

1 Decree of 2 Feb. 1996 No. 4-P in the case of checking the constitutionality of the provisions of articles 371, 374 and 384 of the Code of Criminal Procedure of the RSFSR // Vestn. Constitutional Court of the Russian Federation. No. 2. 1996; Decree of 3 Feb. 1998 No. 5-P in the case of checking the constitutionality of the provisions of articles 180, 181, 187 and 192 of the APC of the Russian Federation // Vestn. Constitutional Court of the Russian Federation. No. 3. 1998.

2 Decree of the Constitutional Court of the Russian Federation of 11/17/2005 No. 11-P "On the case of checking the constitutionality of part 3 of article 292 of the Arbitration Procedure Code of the Russian Federation in connection with complaints from the state institution of culture "House of Culture named after the October Revolution", the open joint-stock company "Centroneftekhimremstroy" , citizen A.A. Lysogora and the Administration of the Tula Region” // Vestn. Constitutional Court of the Russian Federation. No. 1. 2006.

of a judicial act by way of supervision (paragraphs 28-30 of the Decree of November 2, 2006 “Nelyubin v. Russia”1). Since the verification of judicial acts that have entered into legal force means, in essence, the possibility of overcoming the finality of these judicial acts, the legislator must establish such institutional and procedural conditions for their revision by way of supervision that would meet the requirements of procedural efficiency2.

In 2009, the European Court of Human Rights recognized that the current procedure for reviewing a case by the Supreme Arbitration Court of the Russian Federation, in contrast to the procedure that existed before 2003, is an effective remedy and complies with the principle of legal certainty3. This statement could not be extended to the procedure for reviewing judicial acts in a court of general jurisdiction, since the following powers of judges were enshrined in civil procedural law: and transfer for consideration of the complaint by the presidium of the court of the subject of the Federation / transfer for consideration of the supervisory appeal to the Supreme Court of the Russian Federation; the right of the deputy chairman and chairman of the court of the subject of the Federation / the right of the deputy chairman and chairman of the Supreme Court of the Russian Federation, respectively, to disagree with the rulings on the refusal to certify the case of the above-mentioned judges who decide this issue alone. Also, the Civil Procedure Code of the Russian Federation (hereinafter referred to as the Code of Civil Procedure of the Russian Federation)4 legislatively established the procedure of “double cassation” at the level of the presidium

1 Judgment of the ECtHR dated 02.11.2006 “The case of Nelyubin v. Russian Federation” (complaint no. 14502/04). The case concerns the annulment of a judgment in the applicant's favor by way of a supervisory review and an alleged violation of his property rights. The case violated paragraph 1 of Article 6 of the Convention for the Protection of Human Rights and Fundamental Freedoms and Article 1 of Protocol No. 1 to the Convention // Bul. European Court of Human Rights. 2007. No. 8.

2 Resolution of the Constitutional Court of the Russian Federation of February 5, 2007 No. 2-P “On the case of checking the constitutionality of the provisions of Articles 16, 20, 112, 336, 376, 377, 380, 381, 382, ​​383, 387, 388 and 389 of the Civil Procedure Code of the Russian Federation in connection with the request of the Cabinet of Ministers of the Republic of Tatarstan, the complaints of the open joint-stock companies Nizhnekamskneftekhim and Khakasenergo, as well as the complaints of a number of citizens” // Collected Legislation of the Russian Federation, 12.02.2007. No. 7. Art. 932.

3 See: Neshataeva T.N., Starzhenetsky V.V. Supervisory proceedings: observance of the principle of fair trial and the principle of balance of public and private interests // Vestn. VAS RF. 2001. No. 7. S. 122-127.

4 Civil Procedure Code of the Russian Federation dated November 14, 2002 No. 138-FZ (as amended on December 31, 2014) // Ros. newspaper. No. 220. 20.11.2002.

court of the subject of the Federation and the Judicial Collegium for Civil Cases of the Supreme Court of the Russian Federation. The creation by the state of procedures duplicating each other does not contribute to the full realization of the right to a fair trial and the implementation of the principle of fairness.

In connection with the abolition of the Supreme Arbitration Court of the Russian Federation, the Arbitration Procedure Code of the Russian Federation (hereinafter referred to as the Arbitration Procedure Code of the Russian Federation)1 was amended by Federal Law No. 186-FZ dated June 28, 20142, by analogy with the Code of Civil Procedure of the Russian Federation, the “double cassation” procedure was introduced, which cannot be recognized due to the dignity of the current Arbitration Procedure Code of the Russian Federation, at present, civil procedure in the Russian Federation does not correspond to the concept of "effective remedy" within the meaning of the European Convention and the case-law of the European Court of Human Rights, the principle of justice and the right to a fair trial, based on the content attached to these rights by the European human rights court.

In addition, the Constitutional Court of the Russian Federation indicated the place of the acts of the European Court of Human Rights in the legal system of the Russian Federation in paragraph 2-3.1 of the Resolution of the Constitutional Court of the Russian Federation dated December 6, 2013 No. 27-P “On the case of checking the constitutionality of the provisions of Article 11 and paragraphs 3 and 4 part four of Article 392 of the Civil Procedure Code of the Russian Federation in connection with the request of the President

dium of the Leningrad District Military Court3”: as indicated by the Constitutional Court of the Russian Federation in its decision of February 26, 2010 No. 4-P4, a person in respect of whom the European Court of Human Rights found a violation of the Convention for the Protection of Human Rights and Fundamental Freedoms in any case should be able to apply to the competent court

1 Arbitration Procedure Code of the Russian Federation dated July 24, 2002 No. 95-FZ (as amended on December 31, 2014, as amended on March 21, 2014) // Ros. newspaper. No. 137. 07/27/2002.

2 On Amendments to the Arbitration Procedure Code of the Russian Federation: Feder. Law of June 28, 2014 No. 186-FZ // Ros. newspaper. No. 148. 04.07.2014.

3 Decree of the Constitutional Court of the Russian Federation dated December 6, 2013 No. 27-P “On the case of checking the constitutionality of the provisions of Article 11 and paragraphs 3 and 4 of the fourth part of Article 392 of the Civil Procedure Code of the Russian Federation in connection with the request of the Presidium of the Leningrad District Military Court” // Vestn. Constitutional Court of the Russian Federation. No. 2. 2014.

4 Resolution of the Constitutional Court of the Russian Federation of February 26, 2010 No. 4-P “On the case of checking the constitutionality of the second part of Article 392 of the Civil Procedure Code of the Russian Federation in connection with the complaints of citizens A.A. Do-roshka, A.E. Kota and E.Yu. Fedotova // Vestn. Constitutional Court of the Russian Federation. No. 3. 2010.

the Russian Federation with a request to review the judicial act that gave rise to the complaint to the European Court of Human Rights, and to be sure that his application will be considered; in turn, the decision of the competent court on the issue of the possibility of reviewing the relevant judicial act - taking into account the need to take specific measures of an individual nature in order to restore the violated rights of the applicant - should be based on a comprehensive and complete consideration of his arguments, as well as the circumstances of a particular case. A similar position in relation to the results of the procedure for reviewing a judicial act in connection with the establishment by the European Court of Human Rights in respect of the applicant of a violation of the Convention for the Protection of Human Rights and Fundamental Freedoms is held by the Supreme Court of the Russian Federation: referring to the provisions of its Art. 46, interpreted taking into account the recommendation of the Committee of Ministers of the Council of Europe of January 19, 2000 R (2000) 21, by virtue of which the basis for reviewing a judicial act due to new circumstances is not every violation by the Russian Federation of the provisions of the Convention or protocols to it, he explained that when the court considers the need to review a judicial act, the causal link between the violation of the Convention or its protocols found by the European Court of Human Rights and the adverse consequences that the applicant continues to experience is taken into account, and that the judicial act is subject to revision in the event that if the applicant continues to suffer the adverse consequences of such an act and the just satisfaction paid to him, awarded by the European Court of Human Rights pursuant to Art. 41 of the Convention, or other means not related to revision, do not ensure the restoration of violated rights and freedoms (paragraph 17 of the Resolution of the Plenum of the Supreme Court of the Russian Federation dated June 27, 2013 No. 21 “On the application by courts of general jurisdiction of the Convention for the Protection of Human Rights and Fundamental Freedom of November 4, 1950 and the Protocols thereto"2). In the course of the proceedings for the revision of the court decision that has entered into legal force in accordance with paragraph 4 of the fourth part of Art. 392 Code of Civil Procedure of the Russian

1 Recommendation No. R (2000) 2 of the Committee of Ministers of the Council of Europe “On the review of cases and the reopening of proceedings at the domestic level in connection with decisions of the European Court of Human Rights” (Together with the “Explanatory Note to the Recommendation”) (Adopted on 19.01.2000 at 694th meeting of ministerial representatives) // Zhurn. grew up rights. 2000. No. 9. S. 61-64.

Federation, a court of general jurisdiction, obliged to obey only the Constitution of the Russian Federation and federal law (Article 120, part 1, of the Constitution of the Russian Federation) and resolve civil cases on the basis of the Constitution of the Russian Federation, international treaties of the Russian Federation and the legislation of the Russian Federation (part one of Art. 11 Code of Civil Procedure of the Russian Federation), may conclude that it is impossible to enforce the judgment of the European Court of Human Rights without refusing to apply the provisions of the legislation of the Russian Federation, previously recognized by the Constitutional Court of the Russian Federation as not violating the constitutional rights of the applicant in his particular case. In this case, taking into account the fact that the rights and freedoms of a person and a citizen, enshrined in the Constitution of the Russian Federation, are essentially the same rights and freedoms that are recognized by the Convention for the Protection of Human Rights and Fundamental Freedoms, the court of general jurisdiction faces the question of the constitutionality of these legal provisions, which resulted in the violation of the relevant provisions of the Convention for the Protection of Human Rights and Fundamental Freedoms in their interpretation by the European Court of Human Rights. As stated in the decision of the Constitutional Court of the Russian Federation of June 16, 1998 No. 19-P1, due to the requirements of Art. 4, 15, 18, 19, 46, 118, 120, 125 and 126 of the Constitution of the Russian Federation, the conclusions of the courts of general jurisdiction on the unconstitutionality of certain legal provisions cannot in themselves serve as a basis for their official recognition as inconsistent with the Constitution of the Russian Federation and losing legal force ; the Constitution of the Russian Federation assigns such power to the Constitutional Court of the Russian Federation, and it is the Constitutional Court of the Russian Federation that must resolve the issue of compliance with the Constitution of the Russian Federation of legal provisions, the constitutionality of which is questioned by a court of general jurisdiction that has applied to it. It follows from the above legal position that the identification of unconstitutional legal provisions and their exclusion from the number of existing legal norms can only be the cumulative result of the interaction of courts of various types of jurisdiction, taking into account the delineation of their competence, which, on the one hand, implies the exercise by a court of general jurisdiction of the power to raise the question of the constitutionality of the relevant norms before the Constitutional Court of the Russian Federation, and

1 Resolution of the Constitutional Court of the Russian Federation of June 16, 1998 No. 19-P “On the case of the interpretation of certain provisions of articles 125, 126 and 127 of the Constitution of the Russian Federation” // Vestn. Constitutional Court of the Russian Federation. No. 5. 1998.

on the other hand, the obligation of the Constitutional Court of the Russian Federation to finally resolve this issue1.

Thus, at the level of the legal positions of the Constitutional Court of the Russian Federation and the Supreme Court of the Russian Federation, the subject composition of persons who have the opportunity to apply to the Russian state court in order to review a judicial act that has entered into force on a new circumstance, which has been granted discretionary powers to establish the entire set of circumstances, has been narrowed down. required for such treatment.

As stated above, at present, the draft CSC of the Russian Federation proposes to consolidate the principle of justice. However, if the draft CSC RF is not fundamentally reworked, the principle of justice will be declarative, because the judiciary itself will not be fair in its essence, since the “double cassation” is currently in effect, the number of instances in the judicial system does not meet international standards of justice. A huge number of scientific works have been written about the problem of reviewing judicial acts in the doctrine of procedural law2. The possibility of appealing judicial acts that have taken place is a necessary condition for fair justice, recognized by the absolute majority of states. The need to create a unified three-instance judicial system as corresponding to world standards of justice has been repeatedly

has been mentioned in the literature. For example, for the RF Intellectual Property Court4, the Concept proposes to establish a two-instance system for reviewing judicial acts: cassation and

1 Decree of the Constitutional Court of the Russian Federation dated 06.12.2013 No. 27-P “On the case of checking the constitutionality of the provisions of Article 11 and paragraphs 3 and 4 of the fourth part of Article 392 of the Civil Procedure Code of the Russian Federation in connection with the request of the Presidium of the Leningrad District Military Court” // Vestn. Constitutional Court of the Russian Federation. No. 2. 2014.

2 On the discussion that has developed in the doctrine on the issues of reviewing judicial acts, see: for example: Slepchenko E.V. Civil legal proceedings: problems of unity and differentiation. SPb.: Jurid. Center Press, 2011, pp. 227-290.

3 See: Slepchenko E.V. Civil legal proceedings: problems of unity and differentiation. SPb.: Jurid. Center Press, 2011, p. 290; Skvortsov O.Yu. The institute of cassation in Russian arbitration procedural law (the problem of the judiciary and legal proceedings): author. dis. ... cand. legal Sciences. SPb., 2000. S. 7-9; Podvalny I.O. Appeal and cassation in the arbitration process of the Russian Federation: author. dis. ... cand. legal Sciences. SPb., 2001. S. 5, 7-9.

4 On Arbitration Courts in the Russian Federation: Feder. Constitutional Law No. 1-FKZ of April 28, 1995 (as amended on December 22, 2014) // Ros. newspaper. No. 93. 05/16/1995.

supervisory production. At the same time, it is proposed to empower the Intellectual Property Court with the competence to review judicial acts of arbitration courts that have entered into force in cassation proceedings, taking into account the jurisdiction of cases.

Based on the meaning of the legal positions of the Constitutional Court of the Russian Federation, the possibility of appealing a court decision on appeal in an arbitration court (the Court for Intellectual Property Rights is a specialized arbitration court - note E.N.) and reviewing it in a higher instance is one of the integral elements of the right to judicial protection . This follows from the meaning of Art. 46, 50 (part 3) and 123 (part 3) of the Constitution of the Russian Federation and is one of the generally recognized principles of the organization of the judicial system and the administration of justice in a state of law. Along with the first and appellate instances, the APC of the Russian Federation provides for the cassation and supervisory instances (Ch. 21 and 22), which is aimed at creating conditions for a more complete implementation of the constitutional right to judicial protection and for the implementation of the resulting tasks of legal proceedings in the arbitration court. Supervisory proceedings in the arbitration court, as an additional guarantee of the right of citizens to judicial protection, take place after the court decision, the ruling on the case, often considered not only in the first, but also in the appellate and cassation instances, has entered into force and, on its basis, has already many legal relations could arise, and the term for it is not set. Therefore, the Arbitration Procedure Code of the Russian Federation establishes the essential features of judicial proceedings in the order of supervision, as well as the limits of the rights of the supervisory authority.

Taking into account the research existing in the procedural doctrine and the practice of applying procedural norms, it seems right to fix a three-tier system of judicial organization (the court of first instance, courts of appeal / full appeal /, cassation courts) for courts of general jurisdiction, arbitration and specialized courts in a single CSC of the Russian Federation, to make appropriate changes in the law on the judicial system, corresponding to the standards of world justice and the principle of fairness in civil legal proceedings. one

1 Decree of the Constitutional Court of the Russian Federation of February 3, 1998 No. 5-P “On the case of checking the constitutionality of articles 180, 181, paragraph 3 of part 1 of article 187 and article 192 of the Arbitration Procedure Code of the Russian Federation” // Vestn. Constitutional Court of the Russian Federation. No. 3. 1998.

"principle" (from lat.) - the basis, the beginning.

Principles of civil procedural law- the main provisions on the basis of which the specificity, essence and content of this branch of law are determined; its fundamental provisions, fundamental legal ideas enshrined in the rules of law of the most general nature

Meaning of the principles:

1) are important democratic guarantees of justice in civil cases;

2) the court is guided not only by specific civil procedural rules, but also by the principles of procedural law;

3) contribute to the correct interpretation of all norms of civil procedural law;

4) contribute to overcoming gaps in civil procedural law. The application of the analogy of law or law is possible only on the basis of the principles of civil procedural law;

5) determine the structure and essential features of civil procedural law, its general provisions;

6) determine the content of procedural law as a whole;

7) cover all norms and institutions of civil procedural law;

8 indicate the purpose of the process and methods for achieving it;

9 predetermine the nature and content of the activities of subjects of law, the general direction of development and further improvement of this industry.

The principles of civil procedural law concentrate the views of the legislator on the nature and content of modern legal proceedings for the consideration and resolution of civil cases by courts.

The principles of civil procedural law are expressed both in separate norms of the most general content, and in a number of procedural norms, which include guarantees for the implementation of general legal prescriptions in practice. Without guaranteeing norms, principles turn into appeals, slogans.

Since the principles of civil procedural law are implemented in procedural activities, they are not only the principles of law, but also the principles of civil process, i.e. activities.

The principles of any branch of law, including civil procedure, are closely interconnected and form one logical and legal system. Only taken together as a system, they characterize civil procedural law as a fundamental branch of law and determine the public nature of civil proceedings, built on the basis of primarily legality, competitiveness and discretion.

Violation of one principle, for example, the immediacy of the study of evidence, leads, as a rule, to a violation of another principle - legality or the entire system of principles.

Some principles in this system can be considered as guarantees for the implementation of others. Thus, the principle of the state language of legal proceedings is a guarantee of all other principles of the process, in particular the principles of legality, orality.

Classification of principles - the division of their composition into separate groups on some basis, called the basis for the classification of the principles of civil procedure.

In the theory of procedural branches of law (civil, arbitration), principles are usually classified according to the object of legal regulation.

On this basis (foundation), the entire composition of the principles of civil procedural law is divided into two large groups: organizational and functional principles, i.e. determining the structure of the courts and the process at the same time, and functional principles that determine only the procedural activities of the court and other participants in the civil process.

These two groups of principles are interconnected, and often the same principle acts both as an organizational-functional and as a functional one. In this regard, the statement of V.M. Savitsky that there are no principles only organizational or only functional56. The division of principles into two groups is to some extent conditional.

I. According to the normative source:

Constitutional principles (enshrined in the constitution)

not duplicated in the Civil Procedure Code (ex. availability of qualified legal assistance)

duplicated in the Code of Civil Procedure (language of legal proceedings)

Industry (fixed in the code)

II. By field of activity:

General legal principles (principle of legality)

Intersectoral (glasnost)

- sectoral (p. procedural equality of the parties p. 12)

Principles of individual legal institutions (orality, immediacy, continuity)

III. According to the object of legal regulation:

- Organizational and functional principles - principles of the organization of justice, which determine the structure of the courts and the process at the same time

- Functional principles: principles that determine the procedural activities of the court and participants in the proceedings

Organizational principles:

- administer justice through the courts.(enshrined in the Constitution of the Russian Federation, it is valid in both civil and arbitration proceedings (trials). In civil proceedings, this principle is manifested in the fact that the courts in the system of bodies exercising the protection of rights (arbitration courts, notaries, commissions on labor disputes (CCC ), etc.), occupy a special place.The priority of the judicial form of protection of the right is expressed in the fact that: a) when a dispute about the right is considered by several bodies, including the court, the final decision is made by the court, for example, The CCC decides on the application of the interested person by the court; b) the court is entrusted with the duty to check the legality within certain limits of the decisions of the arbitration courts in the event of an application for the issuance of a writ of execution for the enforcement of the decision of the arbitration court; c) and, finally, a decision made in an administrative procedure can be appealed to the court (clause 2, article 11 of the Civil Code of the Russian Federation). Justice is a special type of state activity and is carried out only by judges empowered in the prescribed manner, and in a strictly procedural form established by the procedural law..)

- a combination of sole and collegiate principles in the civil case under consideration means that the citizen cases in the courts of 1st instance are considered by the judge alone or collectively (in the cases provided for by law, Article 7 of the Code of Civil Procedure). If the judge considers alone, he acts on behalf of the court)

- independence of judges and their subordination only to the law means that in the administration of justice, judges are independent, subject only to the Constitution of the Russian Federation and federal law (Part 1, Article 120 of the Constitution). "On the judicial system of the Russian Federation", the Code of Civil Procedure and other Federal Laws adopted on its basis. The independence of judges is ensured by a number of constitutional guarantees (Articles 120-124 of the Constitution of the Russian Federation), specified in the norms of the legislation on the judicial system of the Russian Federation and in the Code of Civil Procedure.

- the principle of procedural equality of citizens and organizations before the law and the court - all persons regardless of gender, race, nationality, language, origin, property and official status, place of residence, attitude to religion, beliefs, membership in public associations, etc. have equal procedural rights in the administration of justice Article 1 of the Civil Code of the Russian Federation. Equality in the procedural rights of organizations does not depend on the location of the organization, legal status, subordination, geographical factors and other circumstances (Article 6 of the Code of Civil Procedure of the Russian Federation).

- principle of public hearing In civil proceedings, the consideration and resolution of cases takes place in an open court session (Article 123 of the Constitution of the Russian Federation and Article 9 of the Federal Law “On the Judicial System of the Russian Federation”). An open trial has a positive impact on judges, persons participating in the case, representatives in terms of public control over their activities, transparency of justice, and affects their compliance with the rules of civil procedural law. This principle is one of the prerequisites for the issuance of well-founded and lawful judicial decisions and the subsequent assessment by society of the work of the courts and the functioning of the justice system. . +free access to the meeting room of all interested citizens, as well as their right to take written notes and record everything that happens in the hall.

- legal language principle This principle establishes Russian as the main language of legal proceedings. In the republics, another language can be used - the language of the respective subject. For persons who do not speak the language, the right to participate in the process in their native language, including with the services of an interpreter, is granted and ensured.) Persons participating in the case who do not speak the language in which the proceedings are conducted explanations and testimonies, to appear in court and file petitions, bring complaints in their native language or in any freely chosen language of communication. Violation of the procedural guarantees established by law for the protection of the rights of persons who do not speak the language of legal proceedings is an unconditional basis for the annulment of a court decision.

Functional principles:

- legitimacy– strict observance by all subjects of legal relations of the procedure for judicial proceedings in civil cases in order to protect the rights and legitimate interests of individuals. and legal persons. This principle is implemented at all stages of the consideration of the case in strict accordance with the Code of Civil Procedure. Legality in the activities of the courts means the full compliance of all their decisions and ongoing procedural actions with the norms of both substantive and procedural law, i.e. law. The principle of legality is proclaimed as a basic principle in the Russian Federation. A person, his rights and freedoms, says Art. 2 of the Constitution of the Russian Federation, are the highest value. Recognition, observance and protection of the rights and freedoms of man and citizen is the duty of the state. The norms of substantive law are considered violated or incorrectly applied if the court: 1) did not apply the law to be applied; 2) has applied a law that is not subject to application; 3) misinterpreted the law.

- dispositivity. Civil cases are initiated, developed, changed, transferred from one stage of the process to another and terminated under the influence of the initiative of the persons participating in the case; This principle distinguishes civil proceedings from criminal ones. The principle of optionality lies in the possibility of the persons participating in the case and, first of all, the parties, to dispose of their material and procedural rights. This principle determines the movement of the process in the case, its transition from one stage to another. In accordance with the principle of optionality, the initiation of a civil case, the determination of the subject and grounds for the claim, the appeal of the decision, its appeal for execution depend on the will of the party (the plaintiff).

- competitiveness. Civil proceedings in the Russian Federation take the form of a dispute, which consists in proving the circumstances that serve as the basis for their claims or objections of the parties; the principle defines the possibilities and obligations of the parties to prove the grounds for the stated claims and objections, to defend their legal position. This principle is closely connected with the principle of legality, optionality. The condition for the implementation of the principle of competitiveness is the procedural equality of the parties, since the parties can compete in defending their subjective rights and legally protected interests only under the same legal conditions using equal procedural means.

The principle of competitiveness in modern conditions has a constitutional consolidation. In part 3 of Art. 123 of the Constitution of the Russian Federation: “Legal proceedings are carried out on the basis of competitiveness and equality of the parties.” This constitutional norm is repeated in the Code of Civil Procedure of the Russian Federation (Article 12). The entire course of the court session has an adversarial form. This form is manifested in the sequence of speeches of the persons participating in the case, determined by law, in the order of examination of evidence and in the sequence in which the court resolved the petitions.

In civil proceedings, when implementing the principle of competition, a certain role is also assigned to the court in the interests of ensuring the rule of law. The court determines which circumstances are relevant to the case, which of the parties they are subject to proof. He has the right to invite the persons participating in the case to submit additional evidence, checks the relevance of the evidence presented to the case under consideration, finally establishes the content of the issues on which it is required to obtain an expert opinion, may appoint an expert examination on his own initiative if it is impossible to correctly resolve cases without an expert opinion.

- The principle of procedural equality of the parties is expressed in the equal opportunities of the parties to protect their rights and interests established by the procedural law. By granting specific procedural rights to one party, the law grants similar rights to the other party. If the plaintiff is granted the right to change the subject and grounds of his claims, then the defendant is accordingly granted the right to change the grounds. neither side enjoys any advantage over the other. Each party is entitled to have a representative. When resolving a dispute, both parties are equally entitled to rely on assistance from the court, but at their request. The principle of procedural equality of the parties has guarantees at all stages of the process and is a prerequisite for the competitiveness of the process. For example, each of the parties and other persons participating in the case have the right to submit to the court issues to be resolved during the examination (part 2 of article 79 of the Code of Civil Procedure of the Russian Federation). When preparing a case for trial, the judge explains to the parties their procedural rights and obligations (clause 1, part 1, article 150 of the Code of Civil Procedure of the Russian Federation). Each party has an equal right to appeal court decisions in an appeal, cassation or supervisory procedure.

- objective judicial truth. The court can apply a judicial rule to specific legal facts, fully and correctly established in the process of judicial proof. The legislation on civil proceedings provides for a list of evidence, with the help of which factual circumstances are established, the procedure for their presentation, reclamation, rules for assessing evidence. The guarantee of the principle of objective truth is the rule on the grounds for canceling or changing a court decision in cassation. An incorrect definition of the circumstances relevant to the case, as well as their lack of evidence, are grounds for the cancellation of the decision (clauses 1, 2, part 1, article 362 of the Code of Civil Procedure of the Russian Federation).

The principle of combining oral and written. The civil process is based on a combination of two principles: oral and written - The trial takes place orally and with the same composition of judges. Some procedural actions must be performed only in writing. The statement of claim as the main procedural document is submitted in writing (Article 131 of the Code of Civil Procedure), the court decision is also made in writing. Some procedural actions can be performed equally both orally and in writing. For example, the parties may file petitions at the court session both in writing and orally. Objections to pending applications may also be submitted in writing. In written and oral forms, questions can be put to the expert at the court session.

- immediacy. By virtue of this principle, the court must base its decision on the case solely on evidence that has been verified and examined in the court session. The court is obliged to strive in every possible way to ensure that information about the facts necessary for resolving the dispute is obtained from primary sources, although copies of documents or extracts from them are not excluded. By virtue of the principle of immediacy of evidence in the case, it investigates and evaluates the composition of the court, which must resolve the case on the merits and make a decision. The composition of the court must be unchanged in the court session. If, with a collegiate composition of the court, one of the judges leaves the process in a particular case, when he is replaced, the consideration and resolution of the case begins anew (part 2 of article 157 of the Code of Civil Procedure of the Russian Federation).

- continuity. Until the end of the consideration of the initiated case or until the adjournment of its proceedings, the court has no right to consider other cases. The goal is to ensure a careful approach to the consideration and resolution of the case. The judge, considering one case, cannot be distracted by the consideration of other cases. A break in the trial is appointed only for rest.