Procedural integrity in Russia and China
The article examines the prerequisites for the introduction of the principle of good faith in the Civil Procedure Code of the People's Republic of China. The most frequent violations of the principle of good faith in the framework of the civil process in China and Russia are analyzed and compared. The mechanisms of ensuring the principle of procedural integrity in the People's Republic of China are considered. The author concludes that, with regard to the problem of procedural integrity, an identical situation has developed in China and Russia, however, China has legislatively established mechanisms for responding to various violations of the principle of good faith. It is concluded that it is necessary to develop procedural integrity in Russia in the light of the successful experience of such a settlement in China.
Keywords: good faith, civil procedure, abuse of procedural rights, responsibility, Chinese civil procedure.
New economic trends in the world dictate the need for permanent development and improvement of legislation in all countries of the world. A striking example of such development is the People's Republic of China (hereinafter referred to as the PRC), which today is the second economy in the world <1>.
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<1> According to data from the official website of the World Bank, IBRD and IDA.
The current Procedural Code of the People's Republic of China was adopted at the fourth session of the National People's Congress of the Seventh convocation in 1991. Since then, it has undergone major changes at least four times: in 2007, 2012, 2017 and the last time in 2021. Such frequent changes are primarily due to the rapid pace of development of the Chinese economy. For example, the increased burden on the courts and the pandemic of the new coronavirus infection COVID-2019 prompted the Chinese legislator to adopt in 2021. amendments aimed at reducing the burden on the judicial system (simplifying legal proceedings and encouraging the use of alternative dispute resolution methods), as well as the widespread introduction of the possibility of participating in online trials.
In the context of the topic of procedural integrity in the People's Republic of China, the amendments to the CPC of the People's Republic of China, adopted on August 31, 2012, which entered into force on January 1, 2013, are of the greatest interest. <2>
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<2> Ha Shujiu. New trends in the development of the civil procedure system of the People's Republic of China // Lex russica. 2014. N 1. P. 34.
Like the amendments adopted in 2021, the changes made in 2012 also had their prerequisites. In order to establish such grounds, it seems right to make a small historical digression.
The adversarial process was a kind of novelty for China, since until the adoption of the current CPC of the People's Republic of China in 1991, the civil process was investigative in nature, in which the leading role was assigned to the court, and only a small amount of authority was given to the parties. Due to its specifics, the investigative process did not meet the requirements of a rapidly developing economy in the context of an increased number of civil cases. CPC of the People's Republic of China 1991 It was intended to solve these problems by moving to an adversarial process with all its inherent features: the adversarial nature of the parties, the assignment of the burden of proof to the parties to the proceedings, the limited scope of the court's powers to direct the trial, etc.
It seems that the transition to an adversarial model of legal proceedings has had a positive impact on the effectiveness of civil proceedings in China. As Gong Nan points out, as a result of the adoption of the new Code of Procedure in 1991, the procedural status of the party has increased - now the court is obliged to take into account its procedural actions, the procedural powers of the court as a participant in the process have been limited - now the court does not direct the process of collecting and presenting evidence, this duty is assigned to the participants in the proceedings. But at the same time, the author notes that the risk of abuse of procedural rights has increased significantly, and there is a need to introduce the principle of procedural integrity, since it allows you to maintain a balance of rights and obligations <3>.
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<3> See: Nan Gong. New trends and features of the development of the Chinese civil procedure law system // Bulletin of St. Petersburg University. Law 1. 2020. p. 195.
Identical opinions are also expressed by Russian researchers regarding the civil procedure in the Russian Federation (hereinafter also referred to as the Russian Federation), for example, T.V. Solovyova points out that participants in civil proceedings in Russia are granted extensive procedural rights, which, if improperly used, have a negative impact on the consideration of civil cases in courts <4>.
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<4> Solovyova T.V. Assessment of the integrity of the behavior of participants in civil proceedings // Arbitration and civil procedure. 2018. N 8. P. 14.
Article 3 of the 1982 Constitution of the People's Republic of China states: "All state administrative bodies, control bodies, judicial bodies and prosecutor's offices are formed by the assemblies of People's representatives, are responsible to them and are controlled by them." However, despite the actual absence of separation of powers at the Constitutional level, Article 6 of the CPC of the People's Republic of China provides that people's courts should administer justice independently of administrative bodies, public organizations and individuals. At the same time, court decisions must comply with the principle of good faith, otherwise the judiciary will lose credibility and citizens will distrust the law <5>.
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<5> Cit. by: Markova O.A., Mukhametova S.I., Koshelev M.S. Some aspects of the ratio of the adversarial nature of the parties and the role of the court in civil proceedings: comparative characteristics of the legislation of Russia and China // State power and local self-government. 2020. N 9.
In the CPC of the People's Republic of China since 2013, good faith has been attributed to the principles of civil procedure at the legislative level. A separate Article 13 of the CPC of the People's Republic of China is devoted to good faith, which reads: "The principle of good faith must be respected in civil proceedings."
Moreover, the procedural legislation of the People's Republic of China has a mechanism for ensuring procedural integrity. So, in Articles 112 and 113 of the CPC of the People's Republic of China, respectively, it is stated: "Claims concealing malicious agreements between the parties involved in the case, attempts to infringe on the legitimate rights and interests of others by filing a lawsuit, a settlement agreement or by any other means must be rejected by the people's courts. In addition, persons filing such claims should be punished with a fine or arrest, depending on the severity of the claim. Persons whose actions were deemed to constitute a crime are subject to criminal liability", "A person who is a debtor by a court decision, who has entered into a malicious agreement with other persons and who evades the fulfillment of a debt established by legal documents by filing a lawsuit, arbitration, settlement agreement or by any other means, must be punished by the people's courts with a fine or arrest depending on the severity of the claim. Persons in whose actions the corpus delicti was considered are subject to criminal liability" <6>. Thus, Chinese law provides for penalties such as fines and even arrest for violations of the principle of procedural integrity.
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<6> Cit. by: Ha Shujiu. New trends in the development of the civil procedure system of the People's Republic of China // Lex russica. 2014. N 1. pp. 37-38.
In the procedural codes of the Russian Federation, good faith still exists as a "phenomenon", since this concept is not attributed by the legislator to the principles, goals, or tasks of civil proceedings, although the term itself is widely used by the legislator.
In our opinion, the normative consolidation of procedural integrity in China and Russia has some similarities, but the Chinese CPC has a clear mechanism for ensuring it, which cannot be said about the Russian procedural codes.
Despite the difference in the norms of procedural law of the Russian Federation and the People's Republic of China, it seems that the Chinese legislator has faced the same abuses that are characteristic of civil procedure in the Russian Federation, such as:
- filing of unsubstantiated claims;
- prolongation of the trial (application of unsubstantiated petitions, late disclosure of evidence, etc.);
- abuse of the rules of jurisdiction;
- failure to appear in court for disrespectful reasons.
This assumption is confirmed in the explanations of the Supreme Court of the People's Republic of China on the application of certain provisions of the CPC of the People's Republic of China (explanations of the Supreme Court of the People's Republic of China, as well as explanations of the Supreme Court of the Russian Federation, are mandatory for all courts of the judicial system), which, in particular, affect such aspects of good faith behavior as:
- a regulation has been adopted on the procedure for collecting penalties for violation of the principle of good faith, recommendations have been given on punishing participants in legal proceedings for perjury and for impersonating other persons involved in the case;
- a separate part of the explanations concerns the promotion of conscientious behavior. For example, liability in the form of refusal to satisfy requests for the admission of evidence if they are submitted in violation of the established deadlines;
- the other part of the explanations considers situations when the persons involved in the case do not sign written obligations on the fact to be proved in the absence of other evidence. In such a situation, the court simply does not accept the evidence provided by the party as appropriate, and witnesses are not allowed to testify;
- in addition, the clarifications affect procedural integrity in the framework of enforcement proceedings: the creation of a register of unscrupulous debtors is regulated <7>.
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<7> See: Nan Gong. New trends and features of the development of the Chinese civil procedure law system // Bulletin of St. Petersburg University. Series: Law. 2020. Vol. 11. N 1. P. 196.
The highest judicial instances of the Russian Federation have also repeatedly spoken out on the issue of procedural integrity. For example, in the Resolution of the Plenum of the Armed Forces of the Russian Federation No. 1 dated January 21, 2016. "On some issues of the application of legislation on reimbursement of costs related to the consideration of the case" <8> the provisions of the CAS of the Russian Federation and the APC of the Russian Federation are actually duplicated: "Persons participating in the case must conscientiously use all procedural rights belonging to them, in connection with which the court has the right to attribute legal costs to a person who abused his procedural rights and who did not fulfill their procedural duties, or did not recognize the court costs as necessary if this led to the disruption of the court session, delaying the trial, preventing the consideration of the case and the adoption of a lawful and reasonable judicial act." The issue of procedural integrity was also addressed in the resolutions of the Supreme Court of the Russian Federation <9>.
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<8> Resolution of the Plenum of the Supreme Court of the Russian Federation dated January 21, 2016 No. 1 "On some issues of the application of legislation on reimbursement of costs related to the consideration of the case.
<9> See, for example: Resolution of the Plenum of the Supreme Court of the Russian Federation of March 29, 2016 No. 11 "On certain issues arising during the consideration of cases on the award of compensation for violation of the right to judicial proceedings within a reasonable time or the right to execute a judicial act within a reasonable time"; Resolution of the Plenum of the Supreme Court of the Russian Federation of 23 June 2015 No. 25 "On the application by courts of certain provisions of Section I of Part One of the Civil Code of the Russian Federation".
In our opinion, it can be stated that the Chinese Armed Forces paid much more attention to procedural integrity than the Russian Armed Forces. It seems that this is a significant omission on the part of the judicial system of the Russian Federation, since such clarifications would allow, even in the absence of a normatively fixed principle of procedural integrity, to increase the speed and efficiency of judicial proceedings in Russia.
Thus, today in China, the principle of procedural integrity of participants in civil proceedings does not just formally exist, but is also ensured by appropriate legal mechanisms. Moreover, the Chinese judicial system does not remain indifferent to the issue of procedural integrity - relevant regulations and clarifications are issued. It seems that the PRC's experience in implementing the principle of good faith is very successful. In this regard, it is worth noting that in China there were identical prerequisites for the introduction of the principle of good faith, which still exist in Russia, namely: similar abuses of participants in legal proceedings, increased burden on the judicial system, lack of normative consolidation of good faith.
In our opinion, in Russia, on the contrary, the topic of procedural integrity has not been sufficiently worked out both at the legislative and theoretical levels. It seems that the successful Chinese experience should be used as an argument for when discussing the issue of introducing the principle of good faith into the civil procedure of the Russian Federation.
