Chikulaev Roman Vladimirovich.
The Perm State University.
The senior lecturer of chair
of civil law and process. cand. of sciences, docent.
The arbitration assessor of
the Arbitration court of the Perm region.
Russia enters into a new historical stage of its
sociopolitical and legal system development. It is caused by integration into
processes of the European Union
activity, requirements of participation in the World Trade Organization, in
efforts of the developed countries of Europe and America on economic crisis
overcoming. In this aspect special value is got by perfection juridical country
system, including legal proceedings. In the majority of the developed countries
the judicial permission of affairs of economic character, disputes with
participation of subjects of enterprise activity as among themselves, and with
the state, it is allocated in a separate branch of judicial authority. This
problem is carried out by specially created judicial bodies - economic courts (for example, in a number of
the countries of Europe and the CIS). In the Russian conditions the tradition
of formation of the specialised bodies which are resolving trials with
participation of enterprises, had result creation of arbitration courts as
integral part of judicial system of the state.
Development of modern judicial system and system of
arbitration legal proceedings in particular has received an impulse in 1991,
with acceptance of the Concept of judicial reform[1]
and the USSR Law «About the status of judges». The Russian law «About the
status of judges»[2] has been
accepted on June, 26th, 1992, and the concept "judicial authority"
was included into the new Constitution of Russia in 1993. In process of
formation of market economy and formation of the democratic state by
authorities repeatedly the certificates directed on perfection of judicial
system (e.g., the Decree of the President of the Russian Federation «About
measures on realisation of the concept of judicial reform in the Russian
Federation» from November, 22nd, 1994 ¹ 2100)[3]
were accepted.
Periodically authorities and judicial community address
to a theme of modernisation of judicial system, and it is possible to consider
this process continuous.[4]
In its turn, construction of system of arbitration legal
proceedings occurred in parallel and in an interconnection to formation of the
judicial mechanism of the Russian state as a whole. A basis of it has became
the Law of RSFSR «About arbitration court» from July, 04th, 1991,[5]
and the Arbitration Remedial Code of the Russian Federation from March, 05th,
1992,[6]
on change to which as a result of judicial reform of 90th has come the
Arbitration Remedial Code of the Russian Federation from May, 05th, 1995.[7] These certificates in itself did not contain
particular norms about realisation of justice with participation of other
persons, except professional judges.
However, along with it, to execute positions
of the Concept of judicial reform, the acceptance of the Federal law «About
introduction in action of the Arbitration Remedial Code of the Russian
Federation»[8] there was a
significant event - introduction in a legal turn of concept of the arbitration
assessor as special remedial figure of justice. According to article 8 of the
named law, the Supreme Arbitration Court of Russia has started experiment
carrying out on disposal of legal proceeding with attraction of arbitration
assessors. It has been established that experiment is spent by joint disposal
of legal proceeding in the first instance, term of carrying out of experiment
has been established in three years. For the first time the general
requirements to arbitration assessors have been defined: persons, «possessing
special knowledge and experience in sphere of enterprise and other economic
activities» could be them. Also the general approach to legal status of the
arbitration assessor, assuming was established that the assessor "takes
part" in consideration of action of proceeding and decision-making on it
on a level with professional judges. Plenum of the Supreme Arbitration Court of
the Russian Federation had been defined an order of carrying out of experiment,
arbitration courts where experiment was made and the list of arbitration
assessors is confirmed.
The experiment on
participation of assessors in arbitration justice has been recognised by
successful and the institute of arbitration assessors has been entered into the
national legislation by the Federal law «About arbitration assessors of
arbitration courts of the Russian Federation regions» from 4/11/2001,[9]
operating in an update and now. From a position of a specially-legal regulation
of arbitration process the order of participation of arbitration assessors is
provided and operating Arbitration Remedial Code of the Russian Federation from
July, 24th, 2002.[10]
With their participation, realised in corresponding rules
of law, in modern conditions it is possible to classify and characterise main
principles of activity of arbitration assessors and arbitration legal
proceedings as follows.
1. Status principles. The order of acquisition of the
status of the arbitration assessor and requirements made to its are established
legislatively and provide such base characteristics as: full capacity,
citizenship of the Russian Federation, possibility when due hereunder powers on
realisation of justice, the age qualification from 25 years till 70 years,
faultless reputation, the higher vocational training, the work experience in
sphere of economic, financial, legal, administrative or enterprise activity not
less than five years, absence of the factors interfering acquisition of the
status (for example, a previous conviction, a condition on the account in a
narcological or psychoneurological clinic, a finding on the state or municipal
service, realisation of separate kinds of activity - the attorney, the notary,
the private detective, the military man, the employee of special services).
It is lawful to carry to number of status principles and
norms of the law on compensation of work of the arbitration assessor, which: 1)
first of all assume a payment of activity of the assessor, 2) define rates of
commission. It is remarkable that a basis for definition of rate of commission
is the official salary of the judge of
the region arbitration court.
At last, major of status principles is the establishment
of legislative definiteness concerning special personal guarantees for the
arbitration assessor. Such guarantees can be subdivided conditionally on 1) the
general (preservation of average earnings in a place of work, the seniority,
others labor and social guarantees), 2) special (independence and
inviolability). It is possible to notice that concerning last group of
norms-principles the position of the legislator varied. So in edition of the
Federal law operating throughout eight years «About arbitration assessors of
Arbitration courts of the Russian Federation regions», on the arbitration
assessor all guarantees of inviolability and the activity, established for
judges and members of their families the Constitution of the Russian
Federation, the Federal constitutional law «About judicial system of the
Russian Federation», the Law of the Russian Federation «About the status of
judges in the Russian Federation», the Federal law «About jurymen of federal
courts of the general jurisdiction in the Russian Federation» extended.
Difficult to tell, how much successful was such legal
design. On the one hand, granting of the arbitration assessor with all powers
of the judge by a legal investigation is logical corresponded with an
establishment of adequate guarantees of independence and inviolability. On the
other hand, granting to the citizen - to the arbitration assessor who is not
the professional judge, all without an exception of the rights of the judge,
logically would mean, for example, granting also the rights to storage and
carrying of office fire-arms that looks not quite reasonable.
Definiteness has been reached in modern edition of the Federal
law «About arbitration assessors of arbitration courts of the Russian
Federation» from 6/29/2009 which extends to the arbitration assessor not
everything, but only a part of the guarantees established for professional
judges. And problem in this part the exception from among such guarantees
special (established for judges) an order of prosecuting of the arbitration
assessor to criminal and administrative responsibility is represented to the
most disputable. Interpretation of the Law leads to a conclusion that on the
arbitration assessor the general order of bringing to account established for
all citizens extends, even in case such prosecution will be connected with
realisation of assessors activity.
2. Procedural principles. For acquisition of
the status of the arbitration assessor unconditional performance of some
requirements and passage of some the procedures established by the law is
necessary. So offers on nominees of arbitration assessors can put forward by a
direction in arbitration court of the region
of Russian Federation the special organisations: commercial and
industrial chambers, associations and associations of businessmen, others
public and professional associations. Generated on the basis of such promotion
of nominees lists of arbitration assessors are represented by arbitration
courts to the Supreme Arbitration Court of the Russian Federation then affirm
Plenum of the Supreme Arbitration Court of the Russian Federation, and are
without fail published in «the Bulletin of the Supreme Arbitration Court of the
Russian Federation». Thus the question on criteria of selection of the persons
who are subject to inclusion in lists directed on the statement, from total
number of the put forward nominees, the law is not defined. It is represented
that such selection is made by corresponding arbitration court of the subject
of federation under own discretion taking into account observance of status
principles.
3. Restrictive
principles. The law establishes is minimum necessary limiting number of
arbitration assessors of arbitration court of the subject of the Russian
Federation in double quantity in relation to number of judges of the given
arbitration court. Thus the maximum number is not limited to the law and in
practice admits equal is minimum necessary, however, at literal interpretation
of the law, can be more. Also the law provides the general deadline of stay of
the citizen in the status of the arbitration assessor which makes two years and
may be renewed only in a case when the legal investigation with participation
of the assessor has not been ended after its powers.
4. “Stop”
principles. Such principles can be allocated in view of presence in the law of
the special norms providing the termination of the status of the arbitration
assessor both on its will, and irrespective of it. So the termination of powers
of the arbitration assessor (that, in law interpretation, means the termination
and its legal status) occurs as in case of the expiry of the term of powers,
and ahead of schedule: at the termination of the Russian citizenship,
condemnation of the arbitration assessor by a court sentence on criminal case,
its recognition incapacitated or capable in part, fulfilment of the belittling
judicial authority act, performance of the activity not compatible to the
status according to the law. Powers of the arbitration assessor stop also his
death (a recognition died). On will of the arbitration assessor of its power
can be stopped on the basis of the personal statement referring to "good
reasons".
In the cases
assuming possibility of preservation of the status of the arbitration assessor
for future time, namely in cases of a presentation of charge on criminal case,
recognitions it is unknown absent, inability for "good reasons",
including through illness, to fulfil the duties, powers of the assessor
stop.
The federal law
«About arbitration assessors of arbitration courts of the Russian Federation
regions» in editions from 6/29/2009 has brought variety of specifications in
questions of activity of arbitration assessors, including concerning the
termination and stay of their powers. So it is established that stay of powers
is carried out by the order of the chairman of arbitration court, and the
termination - by the order of Plenum of the Supreme Arbitration Court of the
Russian Federation on representation of the chairman of arbitration court of
the region of the Russian Federation. Uncertainty of some vital issues thus
remains, for example, that is meant "good reasons", than their
presence proves to be true and whether the termination of powers of the
assessor under its personal statement without references to "good
reasons" (for example, on family or industrial circumstances, in the
absence of sufficient time for performance of duties, etc.) is possible, for
example,
5. Remedial
principles. Unlike all principles set forth above directly following from norms
of the Federal law «About arbitration assessors of arbitration courts of the
Russian Federation regions» (or norms of other laws on which the specified law
contains direct references), remedial principles are based on norms, first of
all, the arbitration remedial legislation. The basic laws are the Federal Constitutional Law «About arbitration courts
in the Russian Federation»[11]
and the Arbitration Remedial Code of the Russian Federation. Last act
certificate enters a remedial figure of the arbitration assessor article 17
point 1, establishing possibility of formation of the joint judicial structure
consisting both from three professional judges, and from the judge and two
arbitration assessors. The particular order of attraction of arbitration assessors
to arbitration legal proceedings is established by article 19 of the Code
which, besides procedure actually attraction of assessors and formation in this
connection judicial structure, contains also other important norms. In
particular, in points 5-7 of article 19 of the Code the equal rights with the
arbitration judge and duties of the arbitration assessor in the course of legal
proceedings are fixed, with an exception of possibility of the assessor are the
chairman in judicial structure.
The order of attraction
of the arbitration assessor to participation in the business, established by
points 1-4 of article 19 of the Code, has special importance because the given
order provides a constitutional right of the parties of judicial dispute on its
consideration with participation of arbitration assessors. However application
of these norms throughout all term of existence of institute of arbitration
assessors in the Russian judiciary practice was not problemless.
So the order and
term for party will about a legal investigation with participation of
arbitration assessors is established. The order consists in realisation of two
special remedial actions: statements of the petition for attraction of
assessors and the statement for a concrete nominee of the arbitration assessor.
Term for the petition statement makes not later than one month, and for the
statement for a nominee - not later than ten days prior to the beginning of
proceeding. The moment of the beginning of proceeding, taking into account
operating remedial, norms depends on variety of circumstances and is in advance
precisely calculated to be, obviously, cannot.
According to point
1 of article 137 of the Arbitration Remedial Code of the Russian Federation,
the judge, recognising
trial prepared, takes out definition about business appointment to proceeding.
Hence, the party can learn about exact date of proceeding only from the
specified definition which should be not necessarily taken out not later than a
month before date of judicial session. At last, it is necessary to take into
account the norm of point 4 of article 137 of the Code, providing theoretical
possibility of the beginning of the "basic" judicial session at once
on termination of preliminary session. Objectively that all specified circumstances
complicate condition performance about monthly term of the statement of the
petition for a legal investigation with participation of arbitration assessors.
In practice the question dares, as a rule, by removal by the arbitration judge,
in case of the statement the party (parties) of the petition for attraction of
arbitration assessors, definitions about proceeding appointment not earlier
than in a month. It it is possible to recognise unique a true variant of
remedial action, however thus there is also a problem of observance of the
three-monthly term provided by point 1 of article 152 of the Code.
The remedial law
does not connect the right of the party to consideration of arbitration trial
with participation of arbitration assessors with a choice of a concrete nominee
of the arbitration assessor. In case the petition for attraction of arbitration
assessors is satisfied, but the party (at least and declared the petition) has
not made when due hereunder unequivocal will concerning a nominee, the arbitration
assessor is defined by court independently. In the specified aspect it is
necessary to note two important features: 1) for formation of judicial
structure with participation of arbitration assessors of enough unique remedial
action (the petition for it) only one party of dispute, 2) the law at present
does not establish a special order of definition of a nominee of the
arbitration assessor by court in the absence of statements of the parties for a
nominee.
It is possible to
assume that from all number of norms about attraction of the arbitration
assessors who as a whole are keeping within frameworks of one article 19 of the
Arbitration Remedial Code of the Russian Federation, the greatest quantity of
questions the disposition of norm of point 3 of the specified article,
containing and in present edition caused a condition: “If the petition for a
legal investigation with participation of arbitration assessors is satisfied …
“. At logic interpretation of this part of norm, with the account as well norms
of point 4 of the given article directly sending to article 159 of the Code,
the petition for attraction of arbitration assessors can be, but can and not to
be satisfied by arbitration court. In our opinion, at construction of the
specified norms of article 19 of the Code the logical-legal error, including
absence of obvious system connection, unfortunately, has been admitted at
reference design construction (in reference to Code article 159). Result of it
was that courts took out definitions about refusal in satisfaction of the
petition for a legal investigation with participation of arbitration assessors,
for example, because of absence of necessity for special knowledge. We believe
that such position is not true taking into account that the remedial figure of
the arbitration assessor should not be identified, for example, with the
judicial expert or the specialist (really possessing those «special
knowledge»).
Appointment and
role of arbitration assessors follow from all named above the laws regulating
activity of the Russian judicial system, including from article 47 of the
Constitution of the Russian Federation assuming the unconditional right of the
party on a legal investigation by the only court and judicial structure
according to the law. Hence, the right of the party guaranteed by the law to
consideration of arbitration dispute with participation of arbitration
assessors means necessity of corresponding formation of judicial arbitration
structure. Other will of the legislator should be accurately stated in norms of
the law.
At last, in end of
the characteristic of remedial principles of activity of arbitration assessors,
we will note existing while legal uncertainty of a question of a choice of a
nominee of the arbitration assessor in case of remedial partnership. Proceeding
their operating legal designs, it is represented that co-claimants or
co-defendants should express the coordinated will concerning arbitration
assessors. In other cases, for example, if one participating party wishes to
involve arbitration assessors, and the second - strongly objects, there will be
an uncertainty, not removable on the basis of operating rules of law. If the
petition for attraction to business of arbitration assessors is satisfied, but
there is no definiteness of remedial accomplices concerning a concrete nominee,
obviously, the question on nominee appointment should be resolved by court on
the basis of the paragraph of second point 3 of article 19 of the Arbitration
Remedial Code of the Russian Federation.
Summarising the
aforesaid it is possible to notice that in Russia already enough extensive and
certainly positive experience of participation of arbitration assessors in the
state legal proceedings is saved up. From perspective problems on which it
would be desirable to appoint the legislator and scientific community, we name
the cores: 1) consideration of a question of returning to a special order of
attraction of arbitration assessors to criminal and administrative (or, at
least, - to criminal) responsibility; 2) specification of a legal procedure
concerning appointment of arbitration assessors for a legal investigation
(including basic definiteness in a question on appointment of a nominee as the
party, court or a method of casual sample); 3) formation of the general legal
doctrine of institute of arbitration assessors and explanation of the legal
maintenance of the given institute (or as representative of the party in trial,
or as the person having functions delegated by the state, or as special case of
partial execution by the special representative the person of judicial powers,
or other).
[1] About the concept of judicial reform in RSFSR. Decision of SÑ of RSFSR from October, 24th, 1991 ¹ 1801-1 // // Vedomosty VS RSFSR, 1991, ¹ 4, ò. 1435
[2] Vedomosty SND I VS RF. 30.07.1992/ ¹ 30, art. 1792.
[3] Sobranie zakonodatelstva RF. 28.11.1994. ¹ 31. art.. 3253,
[4] The decision of
VII All-Russia congress of judges from December, 04th, 2008 «About a condition
of judicial system of the Russian Federation and priority directions of its
development and perfection»//[the Electronic resource]:
<http://www.ssrf.ru/>
[5] Vedomosty SND I VS RF .01.08.1991. ¹ 30. art. 1013.
[6] Vedomosty SND I VS RF. 16.04.1992. ¹ 16. art. 836.
[7] Sobranie zakonodatelstva RF. 08.05.1995. ¹ 19, art. 1709.
[8] Sobranie zakonodatelstva RF. 08.05.1995. ¹ 19. art. 1710.
[9] Sobranie zakonodatelstva RF. 04.06.2001. ¹ 23. art. 2288.
[10] Sobranie
zakonodatelstva RF. 29.07.2002. ¹ 30. art. 3012.
[11] Sobranie zakonodatelstva RF. 01.05.1995. ¹ 18. art. 1589.