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ON THE RIGHT OF A COURT OF SUPERIOR JURISDICTION ON GIVING OBLIGITARY INSTRUCTIONS ABOUT INTERPRETATION OF THE LAW, AND LEGISLATIVE MEASURES ORIENTED TO GROWTH OF PROCEDURAL GUARANTEES OF INDEPENDENCE FOR A COURT BELOW

PROBLEMS OF CIVIL PROCEDURE


M.Sh. PATSATSIYA

M.Sh. PATSATSIYA,
Doctor of Legal Sciences, Chief Researcher at the Russian State University of Justice,
Partner of the Legal Firm Legist LLP

DOI: 10.24031/2226-0781-2019-9-3-45-60

Discussion of the procedural role of the instructions of a higher court is not new, scholars
have already noted the focus on the requirements of the mandatory implementation of
instructions of a higher court to protect the legitimate interests of citizens and organizations,
early resolution of civil disputes with the least expenditure of procedural means. Such
instructions are necessary for a lower court to properly resolve the case, as well as to
understand the essence of the mistakes which were made and not to repeat them in future
decision. Procedural scholars formulated proposals for amending the procedural legislation
in terms of the competence of higher courts (regulating the process of giving instructions
which may restrict the independence of the court of first instance). The introduction of the
proposed legal novels should lead to the fact that lower courts will often not agree with the
legal approaches reflected in the court rulings of the higher courts, rather than “listening” to
unconditionally all the judgments of the higher court. The article deals with topical aspects
of the correlation of mandatory instructions of a higher court on the interpretation of the
law and the independence of lower courts in modern civil and arbitration processes.

Keywords: binding instructions of court above; procedural guarantee of court independence
court below, reviewed case; civil procedure; interpretation of the law.

References

Argunov A.V., Argunov V.V., Demkina A.V. et al.; Krasheninnikov P.V. (ed.). Articleby-
Article Commentary to the Civil Procedure Code of the Russian Federation. Moscow,
2012. (In Russian)
Bespalov Yu.F. (ed.). Commentary to the Civil Procedure Code of the Russian Federation
(Article-by-Article, Scientific and Practical). 2nd ed. Moscow, 2017. (In Russian)
Gurvich M.A. The Right of the Cassation Instance to Change the Court Decision.
Soviet State and Law, 1957, no. 10. (In Russian)
Ilyin A.V. Referral of the Case to a New Consideration and Independence of Judges.
Bulletin of the Supreme Arbitration Court of the Russian Federation, 2014, no. 5. (In
Russian)
Kallistratova R.F. Obligation of Instructions of a Higher Court in the Course of
a New Consideration of a Case. In Scientific Notes of the All-Union Institute of Law.
Issue 10. Moscow, 1959. (In Russian)
Lesnitskaya L.F. Revision of the Court Decision in Cassation. Moscow, 1974. (In
Russian)

Information about the author

Patsatsiya M.Sh. (Moscow, Russia) – Doctor of Legal Sciences, Chief Researcher at
the Russian State University of Justice, Partner of the Legal Firm Legist LLP (69 Novocheryomushkinskaya
St., Moscow, 117418, Russia; e-mail: legist@legist.ru).

Recommended citation

Patsatsiya M.Sh. On the Right of a Court of Superior Jurisdiction on Giving Obligitary
Instructions about Interpretation of the Law, and Legislative Measures Oriented
to Growth of Procedural Guarantees of Independence for a Court Below. Herald of Civil
Procedure, 2019, vol. 9, no. 3, p. 45–60. (In Russian). https://doi.org/10.24031/2226-
0781-2019-9-3-45-60

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Keywords