The method of civil procedural law - Civil Procedure Law

The method of civil procedural law

The method of legal regulation in the theory of state and law is described as the aggregate of certain legal means and methods by which public relations are regulated, or as a system of legal instruments that create a special legal regime (AV Malko). Among the basic elements of the method of any extent, the law, as a rule, is singled out: general legal status of subjects of legal relations; grounds for the appearance, change or termination of legal relations; ways of formation of the rights and duties of the specified subjects; legal measures of influence, methods and procedures for applying sanctions (SS Alekseev).

When talking about the method of civil procedural law, it is usually noted that, on the one hand, there are imperative elements in it, since the court is nothing more than an organ of state power, on the other - point to the dispositive manifestations inherent in the activities of individuals, participating in the case, and in particular the plaintiff and the defendant.

Indeed, according to the principle of separation of powers, the court exercises a very special kind of state power, which, like all power, does not do without coercion and power regulations. Therefore, the legislator empowers the court with broad control powers with regard to the course and order of the process, as well as the actions of the persons participating in the case. In addition, it is the court that has the right to apply to the participants in the proceedings explicit and hidden types of civil procedural responsibility, which are always specific and differentiated, including, depending on the type of civil proceedings. For example, when reviewing and resolving cases arising from public legal relations, a judge may seek evidence on his own initiative with a view to making a lawful and informed decision. Officials who failed to comply with the requirements of the court to provide evidence are fined (Article 249 of the CCP). At the same time, since the civil process is one of the permitted forms of forced realization of subjective civil law (quod est necessarium, licitum est) in the broad sense of this concept, the process itself can not fail to take into account the freedom of expression of the will of private legal entities. Dispositive start-ups enable the persons participating in the case to dispose of their rights on the basis of the principle of equality at their discretion. So, the parties can conclude an amicable agreement, carry out the mediation procedure, the plaintiff has the right to refuse the claim, and the defendant - to recognize the claim. But the freedom of action can not be unlimited, otherwise there is the danger of abuse of the right (male jure nostro uni non debemus), therefore the court is authorized not to accept the expressive will of the parties if it contradicts the law and violates the rights and legitimate interests of others. Therefore, the method of civil procedural law imperatively-dispositive and its features are expressed in the optimal combination of power and administrative elements. Ignoring one of them in practice leads to negative results: either the court assumes incompatible investigative functions or the court is not able to fulfill the tasks assigned to it related to the administration of justice in civil cases.

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