News of Moscow District Courts
Interview of the issue
I.V. Reshetnikova. A sense of justice, if not supported by evidence, remains nothing but a sense
I.M. Matskevich. We have gone from a country of readers to a country of writers
Subsidiary Liability for Obligations from Corporate Loans of an Administratively Liquidated Legal Entity
Analytics: Problems of Proof in Arbitrazh (Commercial) Proceedings
Flexible Approach to Prejudice in the Civil Process: Opportunities and Risks
The article deals with the problems of normative regulation and practical application of the rules of prejudice of judicial acts in the civil process, a mechanism for refuting prejudice is proposed.
Keywords: prejudice, circumstances, facts, judicial acts, limits
Evidentiary Value of Materials Obtained from Another Civil Case or Economic Dispute in the Civil Process
In this paper, the question of the significance of evidentiary acts in other cases considered or already considered by courts of general jurisdiction or arbitration courts is considered. The author wonders how legitimate is the direct “transfer” of evidence, their “borrowing” from the materials of one civil case or economic dispute to the materials of another case; will such evidence require a kind of “legalization” in another process. The problem posed cannot be solved based on the rules on the prejudice of judicial acts, since the rules on prejudice do not prejudge the evaluation of evidence, including those used in another case. By virtue of the rules of free evaluation of evidence, the court may also give a different assessment of the evidence used earlier in another case. The author divides all available evidence into two groups: evidence that, when presented in the materials of a civil case or an economic dispute, can subsequently be replicated an unlimited number of times without losing their evidentiary qualities in other cases, and evidence that undergoes a change in its quality as a result of procedural actions in the field of evidence. The main problem concerns the evidence belonging to the second group, which is proposed to be evaluated as written evidence, or as other documents and materials. In any case, being submitted to the materials of another case, such evidence loses its nominal evidentiary value, which, however, does not exclude the re-reproduction of such evidence by the court due to new procedures for their research and evaluation. The paper touches upon the problem of the admissibility of different assessments of the same evidence available in different cases. Such an assessment is certainly possible, but the reasons for changing the content of the evidence, which led to its different assessment in different cases, may require a reaction from the court. The work also addresses the issues of collecting, presenting and examining evidence available in another case under consideration or in a case completed by the proceedings.
Keywords: civil case, economic dispute, evidence in another case, prejudice, examination of evidence, evaluation of evidence, reclamation of evidence, review of evidence, civil case materials, economic dispute materials, other documents and materials
Notary Confirmed Facts as a Ground for Relief from the Burden of Proof in Commercial Procedure
The article analyzes provisions of part 5 of article 69 of Arbitrazh (Commercial) Procedure Code of Russian Federation, that release parties from the Burden of Proof of notary confirmed facts. The article includes overview of practice of enforcement this rule of law. Author also addresses the question of correlation of this rule with rules of Collateral estoppel, question of grounds and order of refutation of notary confirmed facts and question of scoping facts that can be confirmed during notarization procedure.
Keywords: notary, notary act, notary protocol, fact in issue, collateral estoppel
Modern Problems of the Formation of Prejudicial Facts in Cases with a Plurality of Persons (On the Example of Corporate Disputes and Bankruptcy Cases)
The article examines the effect of objective and subjective limits of prejudice in cases with a plurality of persons in the arbitration process. The analysis is carried out by the author in the context of corporate disputes and insolvency (bankruptcy) cases. The author identifies and explores the problem of the prejudice of facts in relation to persons who are limited in providing evidence in the case, and the problem of the prejudice of definitions made earlier in the framework of the case under consideration.
Keywords: proof, corporate dispute, corporation, prejudice, pre-trial fact, bankruptcy
Commercial Court’s Independent Search of Information on the Internet: Pro and Contra
On the basis of the analysis of the arguments in favour of the independent search of information by the commercial court on the Internet the author comes to the conclusion that the commercial court has no such right. The article substantiates the conditions under which the court obtains information from publicly available sources.
Keywords: evidence, powers of commercial court, procedural activity of court, principle of independence, adversarial principle
Features of the Proof in the Arbitration Proceedings
The article is devoted to the peculiarities of the proof in the arbitration proceedings. The peculiarities of arbitration proceedings in matters of presentation of evidence by its participants and evaluation of evidence by the composition of the court are noted. The necessity of legislative fixation of the term ‘proof’ and its clear definition is underlined. The classification of evidence, priority means of proof for arbitration proceedings and features of the expert report for arbitration proceedings as one of the important evidentiary means are considered.
Keywords: issue of proof in arbitration proceedings, imperative-dispositive nature of proof, lack of a common understanding of the term ‘proof’, types of evidence, lack of a list of evidence
On the Issue of Conceptual Approaches to Determining the Subject of Proof in the Arbitrazh (Commercial) Process
In the article, the author comes to the conclusion that there is no proper mechanism for determining the subject of proof, taking into account the specifics of the structure of the substantive law norm, the specifics of the actual composition of the legal relationship and individual legal facts. A significant number of situational norms in substantive law also causes the complexity of determining the subject of proof, when the court must determine the facts sought, taking into account the specific circumstances of the case under consideration. At the same time, concretization is a way of applying situational norms. The degree of certainty of the legal norm determines the amount of concretization of the actual composition (alternative, optional, situational compositions with a concretizer element corresponds to the division of legal norms into alternative, optional, situational norms). The thoroughness of judicial knowledge of the claims and objections of the persons participating in the case is due to the fact that the claims and objections of the persons participating in the case are taken into account by the arbitration court when determining the subject of evidence in the case. The procedural powers of the arbitration court to determine the subject of evidence are divided depending on the stages of arbitration proceedings. The author comes to the conclusion that it is necessary to fix the mechanism of determining the subject of proof in the current procedural legislation. The presence of individually determined facts in substantive law, as well as compositions with a concretizer element, since substantive law is replete with situational norms, determines the development of a mechanism for determining the subject of proof, taking into account the specific circumstances of the case under consideration.
Keywords: arbitration proceedings, law enforcement, the subject of proof, judicial knowledge
Analytics: Open Tribune
Legal Effect of Bankruptcy on Commercial Arbitration
The practical intersection between the institutions of bankruptcy and international arbitration has long been seen as ‘a conflict of near polar extremes: bankruptcy policy exerts an inexorable pull towards centralization while arbitration policy advocates a decentralized approach towards dispute resolution’. This statement of the Massachusetts District Court of the United States has become a classic and very focused explanation of the tension between these two legal institutions. Indeed, both institutions have significant conceptual differences. Thus, arbitration is based on the autonomy of will of the parties; arbitrators, as a general rule, are appointed by the parties themselves; arbitration is confidential; arbitral award is final and not subject in the cycles of appeals. All these characteristics are not given to the institution of bankruptcy. Bankruptcy proceedings are adjudicated by the state court, involve the collective participation of creditors in the case and consideration of their rights and interests. The intersection of such different legal institutions, largely devoid of common legal principles, gives rise to a number of complex legal problems in practice. Some of them will be considered in this article: the legal effect of the bankruptcy of one of the parties to the dispute on the enforceability of the arbitration agreement and on the enforceability of the arbitral award.
Keywords: commercial arbitration, bankruptcy, enforceability of the arbitration agreement, enforceability of the arbitral award
G.F. Ruchkina, S.G. Pavlikov
To the Question of the Concept of ‘Subjects of Financial Legal Support of Judicial Expert Activities in the Russian Federation’
The analysis of legislation, which is fragmentary in relation to the topic under study, does not fully regulate the entire range of public relations related to the financing of state expert institutions, as well as other expert structures that do not have such status, made it possible to single out by the authors of the article three of the largest ‘blocks’: the mechanism of financial and legal support for judicial expert activities and relevant subjects. The main direction to optimize the financial legal support for forensic expert activities is associated with the ‘transformation of the status’; of a number of structures with tremendous experience in the implementation of expert activities. In this regard, it seems reasonable to supplement Art. 11 of the Federal Law of 31.05.2001 No. 73-FZ “On State Forensic Expert Activities in the Russian Federation”; with an indication that “State forensic institutions are… also scientific organizations and educational organizations of higher education, the list of which is established by Order of the Government of the Russian Federation of 23.08.2017 No. 1792-r”.
Keywords: subject, mechanism, expertise, court, magistrate, financing, treasury, Judicial Department, Ministry of Finance, sources, private expert, scientific organization, Financial University, educational organization
The Legal Basis of the Supreme Council of the Magistracy of the People’s Democratic Republic of Algeria, its Composition and Functioning
Continuing the series of publications on the Superior Council of Magistracy of the People’s Democratic Republic of Algeria, the author examines the legal basis of its activities. The article analyzes the normative legal acts regulating the legal status of the Council as a body endowed with a special constitutional status. The author also gives a brief characteristic of the composition of the Council and considers the order of its functioning.
Keywords: foreign experience, bodies of judicial community, Algerian People’s Democratic Republic, Superior Council of Magistracy, legal basis of activity, composition, order of functioning
Court Practice Reviews
Information on the results of the analysis of typical mistakes made by the courts of first and appellate instances in insolvency (bankruptcy) cases