Open AccessEstablishing the Circumstances of Civil Cases: Some Doctrinal and Practical Approaches
Author(s) -
Sergey Mikhailov,
M. D. Olegov
Publication year - 2021
Publication title -
aktualʹnye problemy rossijskogo prava
Language(s) - English
Resource type - Journals
eISSN - 2782-1862
pISSN - 1994-1471
DOI - 10.17803/1994-1471.2021.133.12.053-068
Subject(s) - law , civil procedure , presumption , political science , norm (philosophy) , doctrine , civil code , duty , arbitration , supreme court , presentation (obstetrics) , reasonable doubt , medicine , radiology
The paper analyzes certain provisions of civil procedural legislation in terms of their effectiveness as a means of establishing actual circumstances of civil cases by the court from the standpoint of doctrine and judicial practice. The authors examine the relationship between the presentation and disclosure of evidence, draw a conclusion about their close relationship, and their identification, sometimes admitted by judicial practice, is critically assessed. The question of the period for disclosure of evidence was investigated, in respect of which it was concluded that provisions of the Code of Civil Procedure of the Russian Federation, although not quite specific, but sometimes quite definitely allow this period to be established. Taking into account the stance of the Supreme Court of the Russian Federation, then authors propose a solution to the problem of the consequences of non-disclosure of evidence in a civil case. The paper analyzes individual norms and institutions that allow the court to establish the circumstances of civil cases without evidence or on the basis of explanations of the other party. It is concluded that the norm of the second sentence of Part 1 of Art. 68 of the Code of Civil Procedure of the Russian Federation is neither a legal fiction nor an evidentiary presumption. This is one of the manifestations of the action of the general rule for the distribution of the duty of proof. The authors support and justify the position that the norm of Part 31 of Art. 70 of the Arbitration Procedure Code of the Russian Federation is an evidentiary presumption, and the presumption not of fact, but of evidence. In relation to Part 3 of Art. 79 of the Code of Civil Procedure of the Russian Federation, it is concluded that establishment of the facts by the court by applying this norm does not mean obtaining true knowledge about them. Therefore, this provision of the civil procedure law is applied in judicial practice with extreme care.