Dmitry Maleshin, the Russian Style of Civil Procedure

• Citation: Vol. 21 No. 2
• Publication year: 2007

THE RUSSIAN STYLE OF CIVIL PROCEDURE

Dmitry Maleshin^*

Civil procedure¹has traditionally been divided into civil and common law procedural systems.²While the distinctions between the two systems are not as strong today as in previous centuries, they still exist along with the controversial features associated with each.³Under common law, two adversaries generally take charge of the procedural action, while under civil law, officials perform most of the activities.⁴

The main attributes of the classic common law procedural system are: 1) civil juries,⁵2) pre-trial conferences and party-controlled, pre-trial investigations,⁶3) trials designed as "concentrated courtroom drama [that provide] a continuous show,"⁷4) passive judges,⁸5) class actions,⁹and 6) party-selected and paid experts.¹⁰

On the other hand, the main attributes of the civil law procedural system are: 1) the absence of civil juries,¹¹2) a lack of distinction between the pre-trial and trial phases,¹²3) active judges,¹³4) judicial proof taking and fact gathering,¹⁴5) judicial examination of witnesses,¹⁵and 6) court-selected experts.¹⁶

It should be noted that there are also other systems that are largely unrelated to either of these classical approaches, including, for example, the Japanese¹⁷and Chinese¹⁸systems.

The goal of this Article is to show the reader that the Russian style of civil procedure is not simply a continental or an Anglo-Saxon system possessing only classical civil and common law features; instead, a unique system possessing only features that do not exist in traditional approaches. To support this contention, this Article will outline the differences between modern Russia's system of civil procedure and the two classical procedural systems. Additionally, this Article will discuss the origins of those differences.

I. CIVIL LAW PROCEDURAL FEATURES

Before addressing what continental attributes exist in Russian civil procedure, it is necessary to note that historically Russia adhered to the civil law tradition.¹⁹Subsequent socialist countries may or may not have been part of the continental legal family.²⁰At the same time, there were periods when

Russia moved away from the classical continental model of civil procedure.²¹

In the eighteenth and nineteenth centuries, the Russian tsar legislation regulated civil procedure in the civil law tradition.²²While the 1864 Russian Code of Civil Procedure has remained influential,²³there has been a move away from this type of adjudication.²⁴Further, the French Code influenced some procedural elements.²⁵During the Soviet era, judges became much more active than before the 1917 Revolution,²⁶and the majority of Russia's

European neighbors were using a civil law procedural system. This model of adjudication was fairly labeled "the radical Communist solution" by Professor Mauro Cappelletti.²⁷

Today, the Russian code contains the following features of the continental system:

• The process is mainly manned by the judge

• There is no civil jury

• There is no class action

• Experts are selected by the court²⁸

Nevertheless, the contemporary Russian style is not a pure continental model of civil procedure because it also has features of the common law procedural system, as well as some other original and exceptional features.

A. Common Law Procedural Features

What common law features exist in the Russian system? There were two periods in the history of Russian civil justice when non-continental features were introduced in the procedure: the 1864 Code²⁹and the 1995 amendments to the 1964 Soviet Code.³⁰

One of the main ideas of procedural reforms in Russia was to establish the adversarial principle of civil procedure.³¹The adversarial nature of civil procedure is a leading characteristic of the common law legal system.³²Both the 1864 and 1995 reforms included this component. Article 82,367 of the

1864 Code prohibited the court from collecting evidence.³³As a result of the

1864 Code, the court was passive in Russia from 1864-1917.³⁴

In the 1990s, there was a remodeling of Soviet civil procedure that was continental in its basis. The changes had some common law orientation. The

1995 amendments to the 1964 Soviet Code also introduced an adversarial character to civil procedure.³⁵The 1993 Russian Constitution proclaimed the principle of adversariness in civil procedure, and subsequent amendments were introduced to the Civil Procedural Code in 1995.³⁶They revoked the rule requiring the court to engage in the process of proof taking without the initiative of the parties.³⁷As a result, the emphasis in the process of proof taking was shifted from the purview of the court to the parties. The 1995

Arbitrazh Procedural Code reduced the functions of the court to a minimum. In the process of proof taking, the court did not have the right to demonstrate its initiative, and determining all the circumstances of a case depended on the full participation of the parties without court intervention.³⁸The court's role was reduced to the unbiased guidance of the process. The 1995 amendments were effective until the adoption of the new code in 2002.³⁹

While the 2002 code has fewer common law elements than the 1995 amendments, some common law elements remain. First, the court is not obliged to collect the evidence.⁴⁰(The present role of the judge in the process of proof taking is an exceptional provision of the new Russian civil procedure and will be discussed below). Second, the trial process includes a preliminary, pre-trial session, which is conducted primarily by the opposing parties.⁴¹

B. Exceptional Procedural Features

Several distinctive features of Russian civil procedure that do not exist in other procedural systems include:

• The role of the judge in the process of proof taking

• The role of the procurator in the civil process

• The review of judgments in the "supervisory" instance

• The original status of judicial precedent⁴²

Additionally, there are other unique features, such as the structure of the judicial system, which includes arbitrazh courts and courts of general jurisdiction,⁴³and the specificity of the cassational instance, which allows the courts to review both questions of law and fact.⁴⁴The above features are key elements of the Russian civil procedure system and will be addressed below.

The role of the judge is "undoubtedly the central problem of any system of civil procedure."⁴⁵During the drafting of the new code of civil procedure (CCP), there was significant discussion over what role the court should play in establishing the facts of a case, as well as the process of proof taking.⁴⁶In Russia, this question was always controversial. As a result of this discussion, the 2002 CCP moved slightly away from the principles established by the 1995 amendments regarding the court's passivity in the process of proof taking.⁴⁷

The enforcement of the 1995 amendments highlighted the danger that a court's refusal to collect evidence could have on reaching objective truth in a case. Because parties are not always able to present the necessary evidence in support of their cases, the 1995 amendments resulted in the court having to issue judgments on the basis of insufficient evidentiary proof. This resulted in many instances where the judgment was based on an incomplete understanding of the real situation.⁴⁸As a result, the real protection of rights could not be achieved. During the drafting of the 2002 Code, the drafting committee was concerned that the 1995 changes were not functioning well.⁴⁹

Today, the court and disputing parties share an active role in the process of proof taking.⁵⁰The allocation of this principle in legislation is a complex problem from a lawmaking point of view, and it became the main challenge for the authors of the code.⁵¹The new code stipulates this principle in the following way: the court should determine which circumstances are important for the case and which of the parties should provide proof.⁵²As a rule, the parties bear the responsibility for presenting the law and facts.⁵³But in a case where it is difficult for the parties to obtain and present the necessary proof, the judge can participate in the process of proof taking.⁵⁴Therefore, the role of the court under the new 2002 CCP is greater than it was under the 1995 amendments. However, the court does not perform the function of investigation for civil cases as it did under the 1964 CCP. The substance and conceptual framework of the current CCP results in a harmonious combination of adversarial principles based on the initiative of the parties and investigative principles based on the activity of the court. This combination, taken from different judicial models, is well suited to the unique culture of Russia and serves to successfully protect the rights of the Russian people.

The next exceptional feature of Russian civil procedure is the role of the procurator. The procurator is a unique element of the Russian legal system,⁵⁵established by Peter I in 1722.⁵⁶Under the 1864 Imperial Code of civil procedure the procurator could take part in a case, but only in a limited number of cases. The procurator not only played a huge role in Soviet civil procedure in Russia, but also in other Socialist countries.⁵⁷

The 1964 CCP granted the procurator a wide range of authority. He was simultaneously a participant in the case and a supervisor of the court's activities.⁵⁸He had the ability to initiate adjudication in order to protect the rights of any person.⁵⁹Additionally, the procurator could intervene in the process at any stage, if necessary, to protect the interests of the public or individuals and to give opinions concerning a case as a whole.⁶⁰His purpose in the civil proceedings was to ensure that all judicial acts were lawful and well grounded.⁶¹The tremendous power of the procurator in the Soviet civil process has been criticized by many scholars.⁶²

The code limited the role of the procurator, but he can still participate in a case. Today, the...