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
The development of partnership relations between Russia and China, the multiple increase in trade between our countries, and the implementation of joint projects in various fields have caused a surge of mutual interest in the comparative study of our legal systems.
The article reveals the role of the court in establishing factual circumstances in civil proceedings in the judicial legal systems of Russia and China. The correlation of the principle of adversarial parties with varying degrees of activity of the court in establishing objective truth is considered, the difference in the role of the court in collecting evidence in Russian and Chinese procedural law is analyzed.
The following issues are presented for discussion: the question of the right of the court in the claim proceedings to collect evidence at its own discretion and the conclusion that the principle of competition in the evidentiary process can and should be combined with reasonable activity of the court in order to ensure the implementation of this principle.
Keywords: civil procedure, the role of the court, the principle of adversarial parties, Russia, China.
The development of partnership relations between Russia and China, the multiple increase in trade between our countries, and the implementation of joint projects in various fields have caused a surge of mutual interest in the comparative study of our legal systems. One of such promising areas is the study of the judicial systems of Russia and China, the identification of common trends, the identification of national peculiarities of the judicial system and judicial proceedings in order to further understand and enrich legal systems, and the joint search for solutions to complex problems of modern society. In both Russia and China, judicial reforms have been actively underway over the past two decades, related to the development and complication of economic, political and social relations and aimed at improving judicial systems and optimizing judicial proceedings <1>.
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<1> Anokhov I.V., Sukhodolov A.P. "One Belt, One Road" project: harmonization of long-term interests of Russia and China // Bulletin of MGIMO University. 2019. N 3 (66). pp. 89-110.
Thus, in Russia, the Code of Civil Procedure (CPC RF) has been in force since 2002. This codified act is in development, as dynamically changing public relations required further improvement of the procedure of judicial proceedings, consolidation of simplified forms of the process in a simple category of cases, additional regulation of procedural mechanisms to reduce the time for consideration and resolution of cases. In addition, over time, the problem of unification of procedural norms has arisen, which are contained in different codes - the CPC of the Russian Federation and the Arbitration Procedural Code (APC RF). For more than five years, there has been a commission to create a Unified Procedural Code. Fundamental changes did not bypass the structure of the judicial system, determining as a result the further centralization of the supreme judicial authority - the abolition of the Supreme Arbitration Court of the Russian Federation in 2014 with the transfer of its powers to the Supreme Court of the Russian Federation. The search for mechanisms to improve the principles of legality and independence of the court led to the emergence of courts of appeal and cassation instances.
Similar processes are taking place in China <2>. Scientists note that the modern system of Chinese legislation is quite "young", ahead of the legislation of Russia by only one decade <3>, <4>. This is due to the introduction of long-term reform projects in the 80s and 90s of the last century. The authorities, pursuing a policy of "reform and openness" in the 1980s, acted very progressively. Such consistency is manifested in the development and adoption of civil procedure legislation. Thus, the Civil Procedure Code of the People's Republic of China was adopted in 1991, it set out the basic rules of civil procedure. The reform process, an active legal policy aimed at using the law to solve socio-economic, political, and national problems led to changes in the current act. Significant amendments were made to it in 2007 and 2012. On January 1, 2013, the new Code of Civil Procedure came into force. More than 100 articles have been significantly revised. Significant changes were made, among other things, to the principles of civil procedure <5>.
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<2> Levchenko I.V. The role of comparative legal research in determining the vector of state development // Baikal Research Journal. 2017. Vol. 8. N 1. P. 25.
<3> Mazyuk R.V. Problems of realization of Russia's public interest in the implementation of international cooperation in the field of criminal justice with the People's Republic of China // Development of Russian-Chinese relations: a new international reality: materials of the Second International scientific and practical conference dedicated to the 70th anniversary of Victory in World War II (Irkutsk, September 21-22 2015): collection of scientific articles: at 2 o'clock / under the scientific editorship of A.P. Sukhodolov, T.G. Ozernikova. Irkutsk: Baikal State University, 2016. Part 2. pp. 53-59.
<4> Smirnova I.G. Historical and legal analysis of the Institute of Protection in the People's Republic of China // Siberian criminal procedural and criminalistic readings. 2016. N 4. pp. 9-15.
<5> 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. 33-34.
In the light of these changes, as part of the formation of updated judicial systems and judicial structures, the issue of the tasks and functions of the court in civil proceedings was once again updated. The ongoing discussions in the scientific community about the role of the court in legal proceedings, the permissible degree of its activity in the process of judicial evidence, the quantitative and qualitative ratio of adversarial and investigative principles lead to the study and rethinking of the problems posed by modern society <6>, <7>, <8>.
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<6> Smirnova I.G., Kazarina M.I. The principle of independence of judges in criminal procedure law: theoretical and methodological aspect of research // Criminal Justice. 2018. N 11. pp. 108 - 113.
<7> Kazarina M.I. Procedural independence of judges and their independence: correlation of concepts // Baikal Research Journal. 2019. Vol. 10. N 1.
<8> Smolkova I.V., Vilkova T.Yu., Mazyuk R.V., etc. Prospects for improving the mechanism of judicial protection in Russian criminal proceedings: problems of theory and practice // All-Russian Journal of Criminology. 2018. Vol. 12. N 3. pp. 387-395.
In Russia, the judiciary is independent, the court is a guiding, guiding force that ensures that the interests of the disputing parties are balanced and at the same time protects the public interests and the interests of persons not involved in the process. These functions of the court follow from its tasks - the correct and timely consideration and resolution of a civil case.
Even in the golden rules of the Judicial reform of 1864, in the Supreme Decree of the Senate "On the Unpublication of new Statutes", among which the Establishment of judicial institutions and the Charter of Civil Proceedings, the task of the court in Russia is formulated to be "prompt, just, merciful and equal for all subjects, to assert respect for the law" <9>.
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<9> Decree to the Governing Senate (Tsarskoye Selo, 11/20/1864).
In accordance with Article 3 of the Constitution of the People's Republic of China, the judicial power in China is formed by the assemblies of People's Representatives, is responsible to them and is controlled by them. Hence, it is necessary to agree with the conclusions of some scientists that China has established a socialist model of the mechanism for the exercise of state power, in which representative authorities are dominant and the principle of separation of powers is denied <10>. Judicial bodies are formed to exercise State power through the administration of justice and are part of the system of State bodies <11>. At the same time, the current CPC of the People's Republic of China establishes a rule according to which people's courts administer justice in civil cases independently, without interference from administrative bodies, public organizations and individuals (Article 6 of the CPC). Court decisions must comply with the principle of good faith, otherwise the judiciary will lose credibility and citizens will distrust the law <12>.
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<10> Gureeva N.P. Constitutional law of foreign countries: textbook for universities / under the general editorship of M.V. Baglaya, Yu.I. Leibo, L.M. Entina. 2nd ed., pererab. M.: Norm, 2006. p. 753.
<11> Sapega A.V. Features of civil proceedings in the People's Republic of China // Customs policy of Russia in the Far East. 2012. N 4 (61). pp. 102 - 110.
<12> Ha Shujiu. Decree. op. pp. 33-34.
Russian civil procedure law is a branch of public law that regulates public relations that arise between a court and other persons in the course of civil proceedings. Civil proceedings combine the principles of legality, subordination of the participants in the process to the requirements of a court with discretionary powers, with the principle of adversarial nature of the parties, allowing considerable freedom of their various actions to disclose the objective truth in the case and move the process towards its establishment.
The obligation to prove one's position before the court, the obligation to disclose one's evidence to the other party in a timely manner are the main components of the adversarial system.
The adversarial principle of the evidentiary process has a number of undoubted advantages: closely intertwined with the principles of dispositivity and procedural equality of the parties, it allows the participants of the process, according to their choice, to determine the way to protect violated or disputed rights, the degree of their participation in establishing factual circumstances, and to form the evidence base according to their discretion. By imposing on the parties the obligation to prove their position and the circumstances on which they base their attack and (or) defense, and providing for adverse consequences for passivity, failure to provide evidence, moreover, their intentional retention or concealment, the rules of adversarial procedural law, thus, stimulate the parties to independently and fully disclose the actual circumstances of a particular case business.
Choosing the right combination of the procedural activity of the parties and the proper activity of the court in establishing the factual circumstances is the subject of many studies.
The study of the ratio of indicators of the permissible activity of the parties and the court in establishing the circumstances of a particular civil case in the national legal systems of Russia and China over the past hundred years shows the movement of the process towards strengthening the principle of competition.
Thus, the Civil Procedure Code of the RSFSR of 1923 indicated (Article 118) that "each party must prove the circumstances to which it refers... Evidence is presented by the parties and may also be collected at the initiative of the court. If the evidence presented is insufficient, the court may invite the parties to submit additional evidence."
The specified historical period of Russia is characterized by low general literacy of the population, not to mention the legal one, therefore, despite the obligation of the parties to prove, the court, as the most knowledgeable in legal matters, was endowed with the right equivalent to the parties to collect evidence at their discretion in the case.
The Civil Procedure Code of the RSFSR of 1964 prescribed that "evidence is presented by the parties and other persons involved in the case. If the evidence presented is insufficient, the court invites the parties and other persons involved in the case to submit additional evidence or collects it on its own initiative" (Article 50).
Thus, there is a change in the legal regulation towards increasing the burden of collecting them on the parties, placing the burden of collecting evidence on them. The court has a subsidiary (additional) function in such a process.
The Civil Procedure Code of the Russian Federation of 2002 left even less authority in the field of evidence collection to the court. The issue of the legal activity of the court is debatable, several positions have developed in the legal doctrine. Thus, some authors believe that the principles of competition and equality of the parties can be organically combined with the principle of reasonable activity of the parties. The court plays an active role in guiding the process: it explains to the persons involved in the case their rights and obligations, assists in the exercise of their rights, creates conditions for a comprehensive and complete examination of evidence, establishing factual circumstances and the correct application of legislation in the consideration and resolution of civil cases. Other authors (A.F. Voronov) believe that the principle of court activity is not a separate principle, but an exception to the principle of dispositivity in cases where the court, guided by the law, restricts the exercise and disposal of the rights of participants in substantive legal relations <13>. At the same time, there is another point of view, according to which the current CPC of the Russian Federation gives the court quite extensive powers within the framework of the institute of evidence and evidence. So, E. Chesovskaya sees in the norms a "hidden" initiative of the court in assisting in the collection and reclamation of evidence: "... from a person participating in the case, only a programmed petition is required for the court to draw up an appropriate procedural document on the reclamation of evidence" <14>. We believe that this position is very controversial, since the current CPC of the Russian Federation does not contain any indication that the court may collect evidence at its discretion, and the author, justifying his point of view, notes that it is still necessary to receive a petition from the parties to assist in collecting evidence. Even the right of the court to appoint an examination at its own discretion does not serve as evidence to the contrary. Forensic examination is a specific proof, and in fact it is a study of evidence already introduced into the process using special knowledge.
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<13> Tsepkova S.A., Filippov T.M. Procedural activity of the court in civil proceedings // Bulletin of the Saratov State Law Academy. 2012. N 5. pp. 110-114.
<14> Chesovskaya E. The principle of procedural activity of the court in civil proceedings // Russian Justice. 2003. N 8.
In China, the changing role of the court is also linked to the course of historical events. After the victory of the Xinhai Revolution, a process of codification of Chinese law based on European experience was initiated. In 1932, the Code of Civil Procedure was adopted. The laws adopted after the proclamation of the People's Republic of China were largely based on the experience of the Soviet Union. During the period of the so-called great leap forward (1957 - 1976), the legal system was subjected to pressure from the party: in the activities of the court, laws were often replaced by instructions from the party leadership, which indicated a violation of the principle of independence of the courts. Scientists note that although the procedural rules were largely borrowed from the law of the Soviet Union, however, they took into account both national characteristics and party policy <15>. For example, given Chinese culture and the Chinese Communist Party's policy on harmony, the legislation pays great attention to the conciliation procedure. After the 1980s, China, while carrying out judicial reform, again turned to Western concepts of law, studying the relevant institutions in the legislation of Germany, Japan, and the United States.
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<15> Yulin Fu., Meng Xing. Civil Justice In China // Brics Law Journal. 2015. Vol. 3. Is. 4. P. 94 - 124.
In the course of the reforms carried out in China, a system of procedural law has developed, which is largely unified and coincides with European law, including Russian law, which also led to a change in the role of the court, the consolidation of the principles of equality and competitiveness of the parties. According to the rules enshrined in the CPC, "the parties to civil proceedings have equal procedural rights, the people's courts, when considering civil cases, must proceed from the absolute equality of the parties before the applicable law" (Article 8 of the CPC). The parties, justifying their positions, must collect evidence themselves and are responsible for the evidence presented (Article 64 of the CPC).
Along with this, the court may collect evidence independently if it considers that evidence is necessary during the consideration of the case, or if the party itself cannot provide it for objective reasons. The obvious difference between the role of the court in collecting evidence in Russian and Chinese procedural law is also emphasized by Chinese scientists. Thus, Huang Xiang points out that "in Russia, the court facilitates the collection of evidence, and in China, in some cases, the court may, at the request of the parties, directly collect evidence" <16>.
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<16> Huang Xiang. Judicial evidence in civil proceedings (the experience of comparative jurisprudence on the example of Russia and China). M.: Gorodets, 2009. pp. 49-50.
It is worth noting that in the Russian Federation, a court cannot be completely deprived of the right to collect evidence in a case at its own discretion. Currently, the court has this right only in cases considered according to the rules of the CAS of the Russian Federation: challenging the actions of officials and organizations, challenging regulations and others. Cases in this category are specific, usually affect the interests of a large, and in some cases an indefinite circle of people, and have a certain resonance in society.
At the same time, it seems correct in ordinary lawsuits to grant the court a limited right to collect evidence at its discretion, regardless of the petitions of the parties and their consent to these actions. We are talking about evidence that is available to public authorities and management, organizations exercising certain state powers (information contained in the EGRN regarding registered rights and restrictions on real estate, in databases created by law enforcement agencies), and only for the purpose of protecting public interests or the rights and legally protected interests of third parties.
The conducted research shows that the principle of competition in the evidentiary process can and should be combined by the legislator with reasonable activity of the court in order to ensure the implementation of this principle, correct and prompt consideration of a civil case, protection of the rights and interests of persons falling within the sphere of influence of a particular civil process or its results.
Summing up, we believe that a comparative study of the judicial systems and judicial system of Russia and China leads to mutual understanding on common issues, the exchange of positive experiences, and the creation of a more comfortable basis for further cooperation.
