Open AccessStructural and Procedural Factors Affecting Correct Application of the Rules of Jurisdiction in Civil Cases
Author(s) -
D.I. Bekyasheva
Publication year - 2022
Publication title -
lex russica/lex russica (russkij zakon)
Language(s) - English
Resource type - Journals
eISSN - 2686-7869
pISSN - 1729-5920
DOI - 10.17803/1729-5920.2022.182.1.018-028
Subject(s) - supreme court , law , jurisdiction , political science , original jurisdiction , legislation , competence (human resources) , civil procedure , law of the case , court of record , procedural law , constitution , sociology , psychology , social psychology
The maxim of the positivist approach, according to which the courts must strictly follow the letter of the law, today keeps turning into the abolition of judicial acts «in view of unclear, ambiguous legislative regulation of competence delimitation lacking specificity and due clarity,» which does not exclude referring the case for a new hearing (with proper consideration of the merits of the case in previous instances). Courts do not apply uniformly amendments to the procedural legislation (Federal Law of 28.11.2018 No. 451), as well as new clarifications that appeared in the context of the amendments (Resolution of the Plenum of the RF Supreme Court of 30.06.2020 No. 12; Resolution of the Plenum of the RF Supreme Court of 22.06.2021 No. 16) that have finally overcome contradictions between traditional understanding by the Constitutional Court of the Russian Federation of the right to a competent court and the ideas of the ECHR concerning objections to jurisdiction only in the court of first instance. In situations when a court decision is overturned and referred for a new consideration to the court of first instance, the classical understanding of the constitutional right to defence by a competent court looks like an image, a weak effort to lend legitimacy to the arguments provided by the appellate court. Taking into account that the rules of competence and jurisdiction are far from always being determined according to the merits and features of the case, and amendments made to the procedural legislation concerning distribution of cases between courts still do not implement the proposal of the Constitutional Court of the Russian Federation to enshrine in the law a criterion that allows determining a competent court, and that they are implemented arbitrarily, it is proposed to clearly formulate the rule restricting both participants in a disputed legal relationship to make procedural objections based on the lack of jurisdiction of the court of appeal, if such a right could have been exercised in a court of first instance, and the rule to overrule the decision only in cases where a person was really restricted in access to justice and the exercise of the right to judicial protection due to violation of jurisdictional rules.