Herald of Civil Procedure
EN
main-photo

We in a citing index:

LEGISLATOR’S REFUSAL OF THE TERM “JURISDICTION” OR VULNERABLE RULES OF “NEW” JURISDICTION: WHAT’S NEXT?

CIVIL PROCEDURE ON COMMENT


D.I. BEKYASHEVA

D.I. BEKYASHEVA,
Candidate of Legal Sciences,
Associate Professor of the Department of Judicial Power of the National Research University
Higher School of Economics

DOI: 10.24031/2226-0781-2019-9-3-126-143

The article highlights contemporary issues of civil procedural law and arbitration procedure.
The author analyzes the latest changes in the procedural legislation-the rejection of the term
“jurisdiction”, and relevant scientific works on the problem of establishing jurisdiction, which
early propose ways to get access to justice for citizens and legal entities. The replacement of
the term “jurisdiction” with the terms “competence” and “jurisdiction” will cause confusion of
the conceptual framework both in practice and in theory. The law shell be shall be governed
and construed the transfer of the case the absence of the jurisdiction of the court from one
system of courts to another. This rule, together with the procedural prohibition of disputes on
jurisdiction between the courts, makes the defendant’s subjective right to be tried by the court
to whose jurisdiction it is assigned by law vulnerable. The author analyzes the regulation of
the other countries jurisdiction over a dispute and pre-revolutionary procedural legislation.
Disputes about jurisdiction are universally allowed, moreover, the procedure for resolving
conflicts of jurisdiction by a higher court is fixed. The author comes to the conclusion that
the difficult issues of the jurisdiction’s rules should be provided to a particular judicial body
(court of justice) or strengthen the system of guarantees of the parties in the case.

Keywords: civil procedure; jurisdiction; disputes about jurisdiction; system of guarantees;
effective judicial protection.

References

Abova T.E. Implementation of Justice in Civil Cases. In Abova T.E. (ed.). Implementation
of Civil Proceedings by Courts of General Jurisdiction and Arbitration (Economic)
Courts in Russia and Other CIS Countries: Materials of the International Scientific-
Practical Conference. Moscow, 2014. (In Russian)
Abova T.E. On Some Unjustified Discrepancies Between the Existing APC RF and
the CPC RF in the Regulation of Procedural Relations. In Modern Problems of Civil
Law and Procedure: Materials of the International Scientific Conference. Moscow,
24 June 2005. St. Petersburg, 2006. (In Russian)
Abova T.E. Supreme Arbitration Court of the Russian Federation. The System of
Arbitration Courts. In Modern Doctrine of Civil, Arbitration Procedure and Enforcement
Proceedings: Theory and Practice: Collection of Scientific Articles. Krasnodar;
St. Petersburg, 2004. (In Russian)
Belyakova A.V., Voskobitova L.A., Gabov A.V. et al.; Zhuykov V.M. (ed.). Problems of
Development of Procedural Law of Russia: Monograph. Moscow, 2016. (In Russian)
Borisova E.A. The Reduction of Judicial Burden Is Placed at the Head of the Reforms
of the Procedural Legislation. URL: http://www.garant.ru/interview/1144157/. (In
Russian)
Civil Procedure Code of Germany. Deutsche Zivilprozessordnung mit Einfuhrungsgesetz:
Introductory Law to the Civil Procedure Code. Trans. from Deutsch. Moscow,
2006. (In Russian)
Gromoshina N.A. (ed.). Civil Procedure in Modern Russia: Problems and Prospects:
Monograph. Moscow, 2017. (In Russian)
Gromoshina N.A. Reform of Legal Proceedings: Reflections and Suggestions. In Gromoshina
N.A. (ed.). Civil Procedure in Modern Russia: Problems and Prospects: Monograph.
Moscow, 2017. (In Russian)
Judicial Charters of the Russian Empire (in the Field of Civil Jurisdiction): Charter of
Civil Proceedings. Establishment of Commercial Courts and the Charter of Their Legal
Proceedings. Statute of Civil Proceedings in the Provinces of the Kingdom of Poland.
Volost Judicial Charter of the Baltic Provinces. Moscow, 2018. (In Russian)
Khabrieva T.Ya., Tikhomirova Yu.A., Orlovsky Yu.P. (eds.). The Concept of Development
of Russian Legislation. Moscow, 2004. (In Russian)
Kulakov V.Yu. (ed.). Civil Procedure of Foreign Countries (France and England):
Textbook for Graduate Students. Moscow, 2017. (In Russian)
Maleshin D.Ya. Features of the Russian Type of Civil Procedure. In Proceedings of
the Faculty of Law. Book 10. Moscow, 2008. (In Russian)
Maleshin D.Ya. The Death of the “Unified CPC” Caused the Opportunistic Goal of
the Developers to Eliminate the Peculiarity of Arbitration Procedure. URL: https://pravo.
hse.ru/news/180130381.html. (In Russian)
Nefediev E.A. Textbook of Russian Civil Proceedings (reprint). Krasnodar, 2005.
(In Russian)
Povorinsky A. (comp.). A Systematic Index of Russian Literature on the Judicial System
and Judicial Proceedings, Civil and Criminal. In 2 vol. Vol. 1. St. Petersburg, 1896.
Vol. 2. St. Petersburg, 1905. (In Russian)
Reshetnikova I.V. The Concept of the Rapidly Developing Russian Arbitration Procedure
(on the 10th Anniversary of the Adoption of the APC RF). Herald of Civil Procedure,
2012, no. 5. (In Russian)
Rumak V. The So-Called Optimization Is a Road to Nowhere [Interview with
V.М. Zhuykov]. Law, 2018, no. 1. (In Russian)
Soviet Civil Procedure. Moscow, 1979. (In Russian)
Sultanov A.R. Is Jurisdiction a Subjective Right to Review a Case in Court in Accordance
with Established Jurisdiction or a Court Guarantee Arbitrarily Established by the
Legislator? Herald of Civil Procedure, 2013, no. 6. (In Russian)
Sultanov A.R. Justice Cannot Be Unmotivated! Law, 2018, no. 1. (In Russian)
Treushnikov M.K. (ed.). The Path to the Law (Source Documents, Explanatory Notes,
Conference Materials, Options for the Draft CPC, the New Civil Procedure Code of the
Russian Federation). Moscow, 2004. (In Russian)
Tumanov D.A., Streltsova E.G. On Some Conceptual Issues of Justice in Civil Cases.
Law, 2018, no. 1. (In Russian)
Valeev D.Kh., Novikov I.A. (comp.). Civil Procedural Codes of the Countries of the
Commonwealth of Independent States: Textbook. In 2 vol. Vol. 1. Moscow, 2016. (In
Russian)
Vulnerable Inviolability. Conversation with T. Morshchakova. Expert, 2001, no. 10.
(In Russian)
Yakovlev V.F. Judicial Jurisdiction and Specialized Courts: Separation of Powers. In
Yakovlev V.F. Selected Works. Vol. 3: Arbitration Courts: Formation and Development.
Moscow, 2013. (In Russian)
Yakovlev V.F. The Judicial System Has Become the Core of Russian Statehood. Interview.
2012. January. In Yakovlev V.F. Selected Works. Vol. 3: Arbitration Courts: Formation
and Development. Moscow, 2013. (In Russian)

Information about the author

Bekyasheva D.I. (Moscow, Russia) – Candidate of Legal Sciences, Associate Professor
of the Department of Judicial Power of the National Research University Higher
School of Economics (3 Bolshoy Tryokhsvyatitelsky Line, Moscow, 123022, Russia;
e-mail: dibekyasheva@gmail.com).

Recommended citation

Bekyasheva D.I. Legislator’s Refusal of the Term “Jurisdiction” or Vulnerable Rules
of “New” Jurisdiction: What’s Next? Herald of Civil Procedure, 2019, vol. 9, no. 3,
p. 126–143. (In Russian). https://doi.org/10.24031/2226-0781-2019-9-3-126-143

 el_.png   it_.png   book.png

Keywords