Журнал ЗАКОН

While resolving a famous dilemma between active (Continental model) and passive (English-American model) court one could underestimate the issue of the dependence of the court’s powers of its status: professional or nonprofessional (jury) court. Adversary paradigm of criminal procedure was shaped in England and applied only to the non-professional jury that inherently could not be active. The Continental criminal procedure was altered in other way: it was modernised by means of professional development of the court being at the core of criminal justice. At the same time the professional court can administer justice only on the basis of two technical tools: 1) the jura novit curia principle and 2) judicial and investigative powers granted to the court for independent findings of facts. This means that the consistent institutional pattern should not be underestimated, otherwise criminal justice will be deformed.

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Keywords: criminal procedure, activity of the court, English-American model, continental model, consistent institutional patterns

The issue of the key role of the court in criminal trial is one of the most controversial problems in Russian legal doctrine. It is basically studied in the context of comparative law and enforcement of rights of all parties. The author focuses on court powers of collecting and verifying evidence in a trial, if the public prosecutor refuses to uphold a case or if a criminal case is returned to the public prosecutor. It becomes clear that in Russian criminal procedure as a type of European continental criminal procedure the court must be active in all mentioned situations.

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Keywords: procedural activity of a court, court investigation structure, attorney’s refusal to uphold a case, amendment of charge, return of case to public prosecutor

The article deals with the peculiarities of judicial activity in realisation of rights in the scope of civil and administrative procedures. Special emphasis is laid on the role of the judge in enforcing the rights and applying procedural regulations by analogy, including the subsidiary order. The possibility of application of foreign procedural regulations due to the international agreements is also taken into consideration.

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Keywords: judge, application of procedural regulations, subsidiary application of procedure rules, application of procedure regulations by analogy

After the constitutional entrenchment of the adversarial principle in the mid-1990s, the history of procedures had a swing from the principle of procedural activity of the court towards the judge presiding over court proceedings, which has become more obvious in the arbitration procedure. The article deals with the issue of general and special characteristics of the two principles and represents the deep roots of the mentioned prospect in the current arbitration procedure.

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Keywords: procedural activity of the court, principle of judicial presiding over court proceedings, principles of civil procedure

The article touches upon the topic of procedural cooperation of parties in proceedings for a quicker and full achievement of the goals of the trial, which is extremely relevant for both theory and practice of civil procedure. It also features the high value of the co-operative approach of parties to the process. This article contains arguments for the need to improve civil procedure. It is also aligned with the Russian trends towards the effectiveness of trial, intensive case management in the court of primary jurisdiction, the best concentration of evidence and cooperative approach of the court to the parties. Along with the references to certain German peculiarities of the procedure, the article contains relevant examples illustrating Russian realities which are equivalent to German ones. It also describes general concepts and ideas of procedural cooperation as they are perceived by German lawyers.

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Keywords: German civil procedure, principles of civil procedure, cooperation of parties, cooperation in civil proceedings, responsibilities of the plaintiff, duties of the defendant, role of the court in civil proceedings, effectiveness of the civil process

English-American Law applies such term as “standard of pleading”. It demands that the facts stated in the claim should comply with certain requirements. If the facts do not provide any grounds for judicial protection or they are fictious (like time travels of the plaintiff etc.) the court can declare the pleading inadmissible on the earliest stage of the process upon application of the defendant, i.e. before discovery of evidences. Russian law, as well as other continental European laws, does not have such standard of pleading or any specific requirements to the charges declared by the plaintiff. The difference between Civil Procedure Code and Arbitration Procedure Code shows that the role of the courts in the decision upon the utmost issue of continuation of action radically depends on the court subsystem to which the court adheres. But we could suppose that it is far from the optimum in both cases. The issue of standards of pleading needs a thorough theoretic understanding and well-balanced settlement in the unified Civil Procedure Code to come. A separate adversarial procedure on the primary stages of procedure is suggested to be introduced.

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Keywords: standards of pleading, statement of claim

The win of Vladimir Slutsker, ex-senator of Chuvashia, over Russian journalist Olga Romanova in the High Court of Justice of England and Wales in the end of July, 2015 set the Russian news agencies in turmoil. The Court found some statements of Ms Romanova about Mr Sloutsker untrue and awarded him compensation in the amount of 110.000. At first sight it may have seemed that the rich and powerful person decided to play hardball with the opponent in such a sophisticated way, however not everything is so clear here, as one could have thought. The author takes a look on the judgments entered into force and advises on how a modest Russian could act in a similar situation, and how the British justice makes Russian journalism more responsible. The article highlights contemporary regulation of libel and defamation in the English law. Based on recent “Russian” libel cases, the legal action in issue touches upon the standards of proof in jurisdictional matters in the courts of England and Wales. The judgments considered hereby raise unresolved questions of the Russian law: the appropriate service of judicial documents; abuse of rights at accepting English judicial documents in Russia according to the Hague convention of 1965; and possibilities of the entered judgments to be recognised in Russia.

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Keywords: libel, defamation, tort, forum non conveniens, service outside the jurisdiction, access to justice, pro bono representation, responsible journalism

The article deals with the features of the mechanism for ensuring the legal status of a person and the role of court procedure as the main element in the system of instruments used by the state for ensuring the exercise of rights, freedoms and legal duties of citizens and organisations in the Russian Federation.

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Keywords: human rights, mechanism for ensuring rights, freedoms and legal duties, legal status of a person, judicial authority, justice, court procedure

The article focuses on the problem of balance between sovereignty and immunity of a state in civil cases. It discusses the meaning of the principle of sovereign equality of states; explores whether the immunity granted to a foreign state during the court proceedings limits the sovereignty of the state that granted such immunity. The author also explains how a significant breach of human rights can be a ground for full or partial lifting of jurisdictional immunities of states. The article refers to the correspondent legal practice of the national and international judicial authorities.

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Keywords: state sovereignty, foreign state immunity, human rights, jurisdiction, civil proceedings

The article is devoted to contractual models, designed to formalise the legal relationship between the clearing members (parties to original derivative transaction) and the CCP. The author deals with legal concepts of novation, so-called “open offer”, cession (assignment), which are commonly used in international practices. Taking into consideration some Russian legal peculiarities and comparative law experience, the author comes to the conclusion that the concept of assignment is much more preferable for the Russian derivatives market.

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Keywords: сentral counterparty, novation, open offer, assignment, abstract contract, clearing, OTC derivative contract, EMIR, Dodd-Frank Act

The author draws attention to the issues of qualification of the protective claiming and relation of cession of protective legal claims with qualification of the latter. The studied issue becomes topical due to the “illness” of civil process which frequently consists in the complete disregard for the conditions of purchase of claiming, namely for legal facts forming the subject of active legitimation. The main focus is on the right of losses and its differentiation from other claims, e.g. for money refund.

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Keywords: protective claim, assignment, losses, subjective right