Open AccessOn Legal Basis of a Claim
Author(s) -
В. Н. Ивакин
Publication year - 2021
Publication title -
aktualʹnye problemy rossijskogo prava
Language(s) - English
Resource type - Journals
eISSN - 2782-1862
pISSN - 1994-1471
DOI - 10.17803/1994-1471.2021.132.11.107-116
Subject(s) - civil code , basis (linear algebra) , law , paragraph , plaintiff , argument (complex analysis) , political science , legal doctrine , norm (philosophy) , legal norm , epistemology , law and economics , sociology , mathematics , philosophy , biochemistry , chemistry , geometry
The science of civil procedural law advances an opinion that it is necessary to distinguish between the factual and legal basis of a claim. The latter needs to be singled out, since the specific claim always results from a specific legal relationship, from the subjective right of the plaintiff to be protected. The main argument, according to A. A. Dobrovolskiy, is not the presence of the relevant norm in the law but its practical necessity to recognize these legal grounds as an integral part of a claim. However, the author here confuses two different issues: the expediency and the obligatory existence of a legal basis for the claim, although in fact these are far from identical concepts. The author also wrongfully identifies the concepts of "basis of a claim" and "basis of satisfaction of a claim", as a result of which the legal basis of a claim is always included in the basis of a claim. This position is supported by some other scientists who dealt with the problems of the claim (G. L. Osokina, O. V. Isaenkova). Meanwhile, if we consider a claim as a legal phenomenon in general, then the legal basis is indeed a necessary component of the general concept of “the basis of a claim”. However, if we turn to specific claims, then the legal basis of the claim can be either optional (Code of Civil Procedure of the RSFSR 1964) or mandatory (Code of Civil Procedure of the Russian Federation 2002). Currently, in accordance with paragraph 4, Part 2 of Art. 131 of the Civil Procedural Code of the Russian Federation, the statement of claim must indicate what constitutes the violation or threat of violation of the rights, freedoms or legitimate interests of the plaintiff. The paper draws attention to the shortcomings of this norm, and thus suggests to remove it from the Civil Procedural Code of the Russian Federation. At the end of the paper, it is suggested that with the development of civil procedural legislation, reference to the norms of law in a statement of claim will become mandatory. However, the recognition by V. V. Yarkov of this provision as valid by virtue of imposing the burden of proof on the parties seems to be unreasoned.