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Possible ways to improve the institution of conciliation procedures in civil proceedings

Naryshkina Svetlana Yur'evna

ORCID: 0000-0003-4985-4747

Postgraduate student, Department "Jurisprudence", Russian State Academy of Intellectual Property (RGAIS)

55a Miklukho-Maklaya str., Moscow, 117279, Russia

vik156@mail.ru
Other publications by this author
 

 

DOI:

10.25136/2409-7136.2023.6.40956

EDN:

FDMRGU

Received:

08-06-2023


Published:

20-06-2023


Abstract: The subject of the research in this article is the norms of procedural law that characterize such a special segment of relations within the framework of domestic civil proceedings as the institution of conciliation procedures. The author in the article analyzes the legislative provisions that formulate the construction of the concept of conciliation procedures, speaking about its legislative "defects". The problem is also aggravated by the lack of unity of views on its explanation in the scientific community, which necessitates a separate study focusing exclusively on the definitive apparatus. The problematic field of Russian legislation is also the diversity of types of conciliation procedures, as well as the specifics of their implementation in the activities of subjects of disputed legal relations in the context of the legal conflict that has arisen, to which the author pays special attention in view of their multifaceted significance and role in judicial practical application, defining such basic legal parameters as "alternative dispute resolution", mediation, settlement agreement, judicial reconciliation, etc. To conduct the research, the author used a methodology that includes an analytical review of the normative legal and scientific literature on the subject of research, synthesis and generalization of the collected data, the formation of optimal parameters for the application of the model of conciliation procedures in civil and arbitration proceedings. The result of the work done was the original author's proposals and recommendations of the legislative "revision" of procedural legislation, forming innovations in law. In particular, in the form of draft articles, an updated definition of conciliation procedures is proposed, their characteristic features are highlighted, their functional significance is determined, their specific types are isolated. The author's vision of the updated Strategy of applying the institute of conciliation procedures in the realities of Russian legal relations is formulated. In their entirety, the components of the novelty of the article.


Keywords:

court, conciliation procedures, legal conflict, alternative dispute resolution, types of conciliation procedures, judicial conciliator, negotiations, mediation, settlement agreement, compromise

This article is automatically translated. You can find original text of the article here.

The relevance of the development of the institute of conciliation procedures, their legal value within the framework of the modern civil process of the Russian Federation is predetermined by a whole set of factors.

First of all, the permanently increasing burden on the judicial system. Thus, according to the statistical reports of the Supreme Court of the Russian Federation for 2022, Russian courts of general jurisdiction considered about 40 million cases, an increase of more than a million compared to the previous year. An increase in the number of cases considered is also observed in the framework of arbitration proceedings + 62,500 cases compared to the reporting period for 2021. It seems quite obvious that the subsequent increase in these figures [15].

Secondly, the need to develop conciliation procedures is due to the improvement of existing organizational and legal mechanisms for resolving legal disputes aimed at protecting the violated rights of various participants in legal relations. The purpose of such mechanisms is to restore constructive trust relations between the parties to a legal conflict, to make a correct and mutually beneficial decision [8, pp. 37-40].

Thirdly, the possibility of a quick, highquality and effective way to resolve judicial disputes, including without resorting to the stage of enforcement of compulsory in the future.

At the same time, the data provided by the Judicial Department at the Supreme Court of the Russian Federation indicates a rather modest application of the legal institute under study. Thus, out of the total number of all civil legal disputes in 2022, only 724 were settled using a conciliation procedure [15].

A separate problem, in the context under study, is the legal regulation of the mechanism for implementing compulsory procedures in civil and arbitration proceedings, since legislative practice has a lot of legal gaps concerning both the definitive apparatus and the implementation procedure itself.

The legislator has not integrated the concept of "conciliation procedures" into any of the current regulatory legal acts. In the modern doctrine of law, many scientists pay attention to the study of such a definition, for example: V. G. Sargsyan [14, pp. 149-152], E. V. Koroleva, L. V. Nabokov, A.V. Krysanova [10, pp. 131-136], E. R. Ivashchenko [9, pp. 124-126], O. A. Ryabus, A.V. Staritsyn [13, pp. 218-223], etc., however, their judgments are far from unambiguous.

The polysemantic nature of the interpretation of the concept of compulsory procedures within the framework of the civil process leads to ambiguity in the interpretation of its essential aspects by the scientific community.

Thus, E. R. Ivashchenko considers conciliation procedures as a phenomenon of a legal nature, which has as its main goal the restoration of partnership relations between the parties to a legal conflict, through the use of legally provided methods and techniques at the initiative of the parties [9, pp. 124-126].

O. A. Ryabus, A.V. Staritsyn call conciliation procedures a legitimate way of consensual settlement of a dispute with the help of a third party, taking into account the capabilities of the parties [13, pp. 218-223]. However, dear authors do not take into account the fact that certain types of conciliation procedures are possible without the participation of third parties for example, a settlement agreement or a negotiation process.

V. G. Sargsyan says that conciliation procedures are a procedurally established possibility of the court and under its direct control, to settle a dispute by peaceful means of resolution [14, pp. 149-152].

The correlation of the above views allows us to formulate the following definition.

Conciliation procedures are procedural and legal interaction of the conflicting parties within the framework of a particular legal dispute with or without the involvement of third parties, aimed at changing their strategic behavior from confrontation to compromise cooperation on ways out of the existing legal conflict based on the application of substantive law, entailing the rejection of the use of the jurisdictional method of its permissions expressed in agreement and mutually beneficial, trust-based cooperation.

Thus, conciliation procedures are characterized by:

directly independent and final settlement of a legal conflict dispute;

applied on the basic principles of voluntariness, cooperation, confidentiality and equality;

legal result of conciliation procedures legal compromise;

third parties may be involved in their implementation mediation, judicial reconciliation;

can be applied at any stage of legal proceedings, i.e. before the court decision.

The above makes it possible to formulate the following additions to the current legislative array in the context of the stated issues, namely, Part 1 of Article 153.1. of the Civil Procedure Code of the Russian Federation [2] to change, presenting the editorial in the following content:

"Conciliation procedures are an integral part of legal proceedings, which consists in a comprehensive resolution of a legal dispute through the use by the court of measures of a conciliatory nature and properties, directly under its control, guided by the legitimate interests of the parties, the principles of voluntariness, cooperation, confidentiality and equality, as well as the tasks of justice itself as a whole." Similar additions should be made to Part 1 of Article 138 of the Agro-Industrial Complex of the Russian Federation[3].

Since October 25, 2019, legislative additions (innovations) regarding the implementation of conciliation procedures concerning their terms, species diversity, the procedure for implementation, as well as the return of the state fee in the case of such reconciliation No. 3-FKZ; No. 197-FZ; No. 198-FZ have come into force [6, pp. 103-105].

The existing list of their procedures mediation and settlement agreement has been supplemented with such as mediation, judicial reconciliation, negotiations.

However, legislative practice still does not have a single guide for their application, in connection with which the literature has long been proposed [12, pp. 62-70; 5, pp.34-36]:

creation of a competent specialized body for the settlement of disputes between the parties;

having analyzed the practice of such a body, develop an appropriate Federal Law, which in its structural content should combine:

1) the concept of judicial reconciliation, its principles of implementation and implementation;

2) the legal status of the specialized body for the settlement of disputes between the parties;

3) a list of the rights and obligations of judicial conciliators, mediators, intermediaries and other persons entitled to a peaceful settlement of the dispute;

4) the terms of conciliation procedures and other provisions necessary for the full and effective practical implementation of the legal institution in question.

Supporting in their judgments such authors as M. V. Autonomova, A. A. Budyakov, E. A. Kharlamova [4, pp.213-216], R. R. Magizov, C. F. Nizamova [11, pp.8-11] with the aim of popularizing and further developing the institute of conciliation procedures in arbitration courts and courts of general jurisdiction, we consider it appropriate:

to formulate the concept of "alternative dispute resolution" as a set of legally non-prohibited ways of resolving legal conflicts by protecting the legitimate interests of participants in civil (arbitration) proceedings with the help of the most effective legal means of their reconciliation with the help of a third party or independently determining their procedural status, the direct procedure for resolving the legal dispute that takes place, as well as the procedure for execution the decision made.

to develop at the legislative and state level a unified Strategy for the application of the institute of conciliation procedures in the realities of Russian legal relations;

The strategy should have chapters in its content:

1. General provisions on the application of compulsory procedures;

2. The possibilities of using the institute of conciliation procedures in various legal proceedings;

3. The main indicators of the use of conciliation procedures in the Russian Federation;

4. Normative legal and organizational basic provisions of the application of compulsory procedures in certain types of civil proceedings;

5. Establishment of legitimate interests and compliance with procedural and legal guarantees of participants in legal proceedings in the mechanisms of application of certain types of compulsory procedures;

6. Provisions ensuring the safety of the use of conciliation procedures.

In addition, we believe that the introduction of the institution of reconciliation into the civil process is hindered, among other things, by the lack of awareness of citizens regarding the possibility of using such procedures, and as a result, the emergence of distrust in them in comparison with the judicial act of justice that completes the process.

What can be eliminated by:

increasing the level of legal awareness (literacy) of the population,

providing mediators and other intermediaries with the opportunity to inform about their activities, making it open and accessible to citizens [7, pp. 149-150].

The above innovations, in our opinion, will contribute to the extensive use of conciliation procedures within the framework of Russian legal proceedings and ensure their effectiveness, giving rise to subsequent transformations in the judicial sphere, which can bring the administration of domestic justice to a qualitatively new level, strengthening guarantees for the protection of the rights and freedoms of its participants.

References
1. The Constitution of the Russian Federation on December 12, 1993 (subject to amendments made by the Laws of the Russian Federation on Amendments to the Constitution of the Russian Federation No. 6-FKZ of December 30, 2008, No. 7-FKZ of December 30, 2008, No. 2-FKZ of February 05, 2014, No. 11-FKZ of July 21, 2014, as amended, approved during the all-Russian vote on 01.07.2020). Retrieved from http://www.pravo.gov.ru
2. The Civil Procedure Code of the Russian Federation No. 138-FZ of 14.11.2002 (as amended on 14.04.2023, with amendments. from 04/26/2023) (with amendments and additions, intro. effective from 04/28/2023).Retrieved from http://www.pravo.gov.ru
3. Arbitration Procedural Code of the Russian Federation No. 95-FZ of 24.07.2002 (ed. of 18.03.2023). Retrieved from http://www.pravo.gov.ru
4. Autonomova, M.V., Budyakov, A.A., & Kharlamova, E.A. (2023). The role and place of the institute of reconciliation and conciliation procedures in the civil process. Law and the State: theory and practice, 4(220), 213-216.
5. Brazhnikova, A.I. (2022). The role of conciliation procedures in a legal conflict. Business and society, 3(35), 34-36.
6. Girgel, I.D., & Kuznetsova, V.V. (2023). Features of judicial reconciliation as one of the types of conciliation procedures. The best student article 2023. Collection of articles of the III International Research Competition (pp. 103-105). Penza.
7. Demeshko, E.D., Firsova, A.A., & Yatsenko, A.O. (2022). Implementation of conciliation procedures in civil proceedings. Eurasian Law Journal, 8(171), 149-150.
8. Zhukova, A.I. (2022). On the development of the institute of conciliation procedures in the Russian Federation. Civil law: law and process, 1(17), 37-40.
9. Ivashchenko, E.R. (2022). Some questions about alternative methods of dispute resolution. International Journal of Humanities and Natural Sciences, 12-1(75), 124-126.
10. Koroleva, E.V., Nabokov, L.V., & Krysanova, A.V. (2022). Conciliation procedures in civil proceedings: separate theoretical aspects. Innovative economics and law, 3(22), 131-136.
11. Magizov, R.R., & Nizamova, C.F. (2021). The main directions and trends in the development of the civil process. Arbitration and civil process, 2, 8-11.
12. Mikhailova, E.V. (2023). Types of conciliation procedures under Russian law. Prologue: Journal of Law, 1(37), 62-70.
13. Ryabus, O.A., & Staritsyn, A.V. (2022). Features of alternative dispute resolution methods. Scientific notes of the V.I. Vernadsky Crimean Federal University. Legal sciences, 2, Vol. 8, 218-223.
14. Sarkisyan, V.G. (2022). On the concept of conciliation procedures in the system of alternative methods of dispute resolution. Agrarian and land law, 7(211), 149-152.
15Judicial statistics. The official website of the Supreme Court of the Russian Federation. Retrieved from https://vsrf.ru

Peer Review

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The list of publisher reviewers can be found here.

A REVIEW of an article on the topic "Possible ways to improve the institution of conciliation procedures in civil proceedings". The subject of the study. The article proposed for review is devoted to topical issues of improving the institution of conciliation procedures in civil proceedings. At the same time, it should be noted that it is difficult to understand directly from the text of the article what mechanisms there are for such improvement. The subject of the study was the norms of legislation and the opinions of scientists. Research methodology. The purpose of the study is not stated directly in the article. At the same time, it can be clearly understood from the title and content of the work. The purpose can be designated as the consideration and resolution of certain problematic aspects of the issue of improving the institution of conciliation procedures in civil proceedings. Based on the set goals and objectives, the author has chosen a methodological basis for the study. In particular, the author uses a set of general scientific methods of cognition: analysis, synthesis, analogy, deduction, induction, and others. In particular, the methods of analysis and synthesis made it possible to summarize and share the conclusions of various scientific approaches to the proposed topic. The most important role was played by special legal methods. In particular, the author actively applied the formal legal method, which made it possible to analyze and interpret the norms of current legislation (first of all, the norms of the CPC of the Russian Federation). For example, the following conclusion of the author: "Since October 25, 2019, legislative additions (innovations) regarding the implementation of conciliation procedures regarding their timing, species diversity, implementation procedure, as well as the return of state duty in case of such reconciliation No. 3-FKZ; No. 197-FZ; No. 198-FZ have entered into force". It should be said that the author has not used the possibilities of an empirical research method related to the study of judicial practice materials. In the context of the purpose of the study, examples from practice (judicial and business) related to the implementation of legislation on conciliation procedures could be given. Unfortunately, it is difficult to understand from the text of the article what specific problems there are in practice in connection with the stated research topic. Thus, the methodology chosen by the author is not fully adequate to the purpose of the study, does not allow to study all aspects of the topic in its entirety. Relevance. The relevance of the stated issues is beyond doubt. There are both theoretical and practical aspects of the significance of the proposed topic. The author is right that "The relevance of the development of the institution of conciliation procedures, their legal value within the framework of the modern civil process of the Russian Federation is predetermined by a whole set of factors." The author is right to highlight this aspect of relevance. Thus, scientific research in the proposed field should only be welcomed. Scientific novelty. The scientific novelty of the proposed article is questionable. First, it can be expressed in the author's specific conclusions. Among them, for example, is the following conclusion: "the introduction of the institution of reconciliation into the civil process is hindered, among other things, by the lack of awareness of citizens regarding the possibility of using such procedures, and as a result, the emergence of distrust towards them in comparison with the judicial act of justice that completes the process. What can be eliminated by: increasing the level of legal education (literacy) of the population, providing mediators and other intermediaries with the opportunity to inform about their activities, making it open and accessible to citizens." This conclusion contains well-known facts and cannot claim scientific novelty. In addition, according to this conclusion, a reference is made to the opinion of scientists, which also excludes scientific novelty. Secondly, the author suggests ideas for improving the current legislation: "Conciliation procedures are an integral part of judicial proceedings, which consists in the comprehensive resolution of a legal dispute through the use of conciliatory measures by the court, directly under its control, guided by the legitimate interests of the parties, the principles of voluntariness, cooperation, confidentiality and equality, as well as the tasks of justice itself as a whole." It is unclear from the text of the article what exactly will help to change this proposal, whether it is not a statement in the law of generally recognized mechanisms in practice. Thus, the materials of the article may be of particular interest to the scientific community in terms of contributing to the development of science, but only if the scientific novelty of the research is clarified. Style, structure, content. The subject of the article corresponds to the specialization of the journal "Legal Studies", as it is devoted to legal problems related to the improvement of the institute of conciliation procedures in civil proceedings. The content of the article fully corresponds to the title, but it is difficult to say that the author has achieved the purpose of the study, since the article does not establish specific mechanisms for improving the institution of conciliation procedures in civil proceedings. The quality of the presentation of the study and its results should be recognized as fully positive. The subject, objectives, methodology and main results of the study follow directly from the text of the article. The design of the work generally meets the requirements for this kind of work. No significant violations of these requirements were found. Bibliography. The quality of the literature used should be highly appreciated. The author actively uses the literature presented by authors from Russia (Avtonomova M.V., Budyakov A.A., Kharlamova E.A., Brazhnikova A.I., Demeshko E.D., Firsova A.A., Yatsenko A.O. and others). Thus, the works of the above authors correspond to the research topic, have a sign of sufficiency, and contribute to the disclosure of various aspects of the topic. Appeal to opponents. The author conducted a serious analysis of the current state of the problem under study. All quotes from scientists are accompanied by author's comments. That is, the author shows different points of view on the problem and tries to argue for a more correct one in his opinion. Conclusions, the interest of the readership. The conclusions are fully logical, as they are obtained using a generally accepted methodology. The article may be of interest to the readership in terms of the systematic positions of the author in relation to the stated problems in case of clarification of the scientific novelty of the article. Based on the above, summarizing all the positive and negative sides of the article, "I recommend sending it for revision"