Justice in the Modern World: 2nd ed., revised and enlarged



Верховный Суд Российской Федерации Институт законодательства и сравнительного правоведения при Правительстве Российской Федерации


Правосудие в современном мире

П од реда кц ией д октора ю р идиче ских н аук, проф есс ора В . М. Лебеде в а, акад емика РА Н Т. Я. Хабр иевой

2-е издание, дополненное и переработанное






НОРМА
Москва, 2017

Supreme Court of the Russian Federation The Institute of Legislation and Comparative Law under the Government of the Russian Federation


Justice in the Modern
World

Edited by
Doctor of Law, professor
V. M. Lebedev,
Member of the Russian Academy of Sciences
T. Y. Khabrieva

2ⁿd edition, revised and enlarged







NORMA
Moscow, 2019

           Justice in the Modern World: monograph / V.M. Lebedev, T.Y. Khabrieva, A.S. Avtonomov and others; ed. by V.M. Lebedev, T.Y. Khabrieva. — 2ⁿd ed., revised and enlarged. — M.: The Institute of Legislation and Comparative Law under the Government of the Russian Federation; NORMA, 2019. — 688 p.
           ISBN 978-5-16-108573-8
           The first edition of the monograph (2012) received a lot of feedbacks from the scientific community and practical lawyers. Since its publication there have been significant changes in the structure of the domestic judicial system, have ended years of debate over the separation of administrative procedure, was adopted a codified act. This led to the need for updates and additions doctrinal notions on justice, first of all the Russian justice, on its current futures group and areas for further improvement.
           The proposed work studies different models of justice, analyzes international standards and practices, and presents an analysis of its formation and development of national model of justice, including a comparative legal aspect. Special attention is paid to the solution of such topical tasks of legal science as the search for the optimal mechanism of interaction between national courts with the international jurisdictional bodies and national courts of other States.
           The work is aimed at methodological support of state activities in the sphere of organization and implementation of the judiciary and deepening the knowledge about how to change views on law and justice, what are of the relations and links between state justice and forms of conflict resolution outside the judicial system.











ISBN 978-5-16-108573-8

                                     © The Institute of Legislation and Comparative Law under the Government
            of the Russian Federation, 2019

            GROUP OF AUTHORS









   V. M. Lebedev, President of the Supreme Court of the Russian Federation, Doctor of Law, professor, Honored Lawyer of the Russian Federation — introduction (co-authored with T. Y. Khabrieva); § 1—3, 5 chap. 3; Glance into the Future (In Lieu of a Conclusion) (co-authored with T. Y. Khabrieva).
   T. Y. Khabrieva, Director of the Institute of Legislation and Comparative Law under the Government of the Russian Federation, member of the Russian Academy of Sciences, titular member of the International Academy of Comparative Law, Doctor of Law, professor, member of the European Commission for Democracy through Law (Venice Commission), Honored Lawyer of the Russian Federation, Honored Lawyer of the Republic of Tatarstan — introduction (co-authored with V. M. Lebedev); § 1 chap. 1 (co-authored with S. V. Chirkin); § 2, 3 chap. 1; § 7 chap. 2 (co-authored with A. Y. Kapustin, T. N. Neshataeva); ‘Glance into the Future’ (In Lieu of a Conclusion) (co-authored with V. M. Lebedev);
   A. S. Avtonomov, the Adviser to the Director of the Institute of Legislation and Comparative Law under the Government of the Russian Federation, principal research scientist of the Department of foreign constitutional, administrative, criminal law and international law of the Institute of Legislation and Comparative Law under the Government of the Russian Federation, Doctor of Law, professor — § 1, 2 chap. 2; § 3 chap. 2 (co-authored with N. A. Golovanova, I. G. Timoshenko); § 4 chap. 2 (co-authored with I. S. Vlasov, A. A. Trefilov, A. N. Pilipenko, O. A. Ternovaya, O. I. Semykina); § 5 chap. 2 (co-authored with V. Iu. Artemov, R. G. Novikova), § 6 chap. 2 (co-authored with V. Iu. Artemov, N. A. Golovanova, R. G. Novikova, I. G. Timoshenko);
   V. Iu. Artemov, principal research scientist of the Department of foreign constitutional, administrative, criminal law and international law of the Institute of Legislation and Comparative Law under the Government of the Russian Federation, Cand. Sc. Law — § 5 chap. 2 (co-authored

5

Group of authors

with A. S. Avtonomov, R. G. Novikova); § 6 chap. 2 (co-authored with A. S. Avtonomov, N. A. Golovanova, R. G. Novikova, I. G. Timoshenko);
   I. S. Vlasov, leading research scientist of the Department of foreign constitutional, administrative, criminal law and international law of the Institute of Legislation and Comparative Law under the Government of the Russian Federation, Cand. Sc. Law, Associate Professor, Honored Lawyer of the Russian Federation — § 4 chap. 2 (co-authored with A. S. Avtonomov, A. A. Trefilov, A. N. Pilipenko, O. A. Ternovaya, O. I. Semykina);
   A. V. Gabov, Deputy Director of the Institute of Legislation and Comparative Law under the Government of the Russian Federation, corresponding member of the Russian Academy of Sciences, Doctor of Law, Honored Lawyer of the Russian Federation — § 1—4 chap. 9 (co-authored with E. S. Getman);
   N. I. Gaydaenko Sher, principal research scientist of the Department of foreign civil legislation of the Institute of Legislation and Comparative Law under the Government of the Russian Federation, Cand. Sc. Law — § 5 chap. 9, chap. 10;
   E. S. Getman, Judge of the Supreme Court of the Russian Federation, Cand. Sc. Law, Honored Lawyer of the Russian Federation — § 1—4 chap. 9 (co-authored with A. V. Gabov);
   N. A. Golovanova, leading research scientist of the Department of foreign constitutional, administrative, criminal law and international law of the Institute of Legislation and Comparative Law under the Government of the Russian Federation, Cand. Sc. Law, Honored Lawyer of the Russian Federation — § 3 chap. 2 (co-authored with A. S. Avtonomov, I. G. Timoshenko); § 6 chap. 2 (co-authored with A. S. Avtonomov, V. Iu. Artemov, R. G. Novikova, I. G. Timoshenko);
   A. Y. Kapustin, First Deputy Director of the Institute of Legislation and Comparative Law under the Government of the Russian Federation, President of the Russian Association of International Law, Doctor of Law, professor, Honoured Worker of Science of the Russian Federation — § 7 chap. 2 (co-authored with T. Y. Khabrieva, T. N. Neshataeva);
   L. A. Kalinina, judge of the Supreme Court of the Russian Federation — § 4 chap. 3;
   V. P. Kashepov, Head of the Department of criminal and criminal procedure legislation; judiciary of the Institute of Legislation and Comparative Law under the Government of the Russian Federation, Doctor

6

Group of authors

of Law, professor, Honored Lawyer of the Russian Federation, Honoured Reseacher of Science of the Russian Federation — § 4 chap. 1 (co-authored with M. A. Savina), chap. 8;
   T. N. Neshataeva, Doctor of Law, professor, judge of the Court of the Eurasian Economic Union — § 7 chap. 2 (co-authored by T. Y. Khabrieva, A. Y. Kapustin);
   R. G. Novikova, research scientist of the Department of constitutional, administrative, criminal legislation of foreign states and international law of the Institute of Legislation and Comparative Law under the Government of the Russian Federation, Cand. Sc. Law — § 5, chap. 2 (co-authored by A. S. Avtonomov, V. Iu. Artemov); § 6 chap. 2 (co-authored by A. S. Avtonomov, V. Iu. Artemov, N. A. Golovanova, I. G. Timoshenko);
   A. N. Pilipenko, leading research scientist of the Department of constitutional, administrative, criminal legislation of foreign states and international law of the Institute of Legislation and Comparative Law under the Government of the Russian Federation, Cand. Sc. Law — § 4 chap. 2 (co-authored by A. S. Avtonomov, I. S. Vlasov, O. A. Ternovaya, A. A. Trefilov, O. I. Semykina);
   L.    M. Pchelintseva, judge of the Supreme Court of the Russian Federation, Doctor of Law, professor — chap. 6;
   M.     A. Savina, head of the Department of paperwork, archive, monitoring the execution of assignments of the Institute of Legislation and Comparative Law under the Government of the Russian Federation, research scientist of the Department of Civil Law and Process of the Institute of Legislation and Comparative Law under the Government of the Russian Federation — § 4 chap. 1 (co-authored by V. P. Kashepov);
   O.     I. Semykina, senior research scientist of the Department of constitutional, administrative, criminal legislation of foreign states and international law of the Institute of Legislation and Comparative Law under the Government of the Russian Federation, Cand. Sc. Law — § 4 chap. 2 (co-authored by A. S. Avtonomov, I. S. Vlasov, A. N. Pilipenko, O. A. Ternovaya, A. A. Trefilov);
   P.    P. Serkov, First Deputy Chairman of the Supreme Court of the Russian Federation, Doctor of Law, professor, Honored Lawyer of the Russian Federation — chap. 4, 7;
   O.     A. Ternovaya, leading research scientist of the Department of civil legislation of foreign states of the Institute of Legislation and Comparative

7

Group of authors

Law under the Government of the Russian Federation, Cand. Sc. Law — § 4 chap. 2 (co-authored by A. S. Avtonomov, I. S. Vlasov, A. N. Pilipenko, A. A. Trefilov, O. I. Semykina);
   I. G. Timoshenko, leading research scientist of the Department of constitutional, administrative, criminal legislation of foreign states and international law of the Institute of Legislation and Comparative Law under the Government of the Russian Federation, Cand. Sc. Law — § 3 chap. 2 (co-authored by A. S. Avtonomov, N. A. Golovanova); § 6 chap. 2 (co-authored by A. S. Avtonomov, N. A. Golovanova, V. Yu. Artemov, R. G. Novikova);
   A.    A. Trefilov, senior research scientist of the Department of constitutional, administrative, criminal legislation of foreign states and international law of the Institute of Legislation and Comparative Law under the Government of the Russian Federation, Cand. Sc. Law — § 4 chap. 2 (co-authored by A. S. Avtonomov, I. S. Vlasov, A. N. Pilipenko, O. A. Ternovaya, O. I. Semykina);
   S. V. Chirkin, head of the Department of Scientific Support of the Activities of the Secretariat of the Delegation of the Russian Federation in the European Commission for Democracy through Law (Venice Commission) of the Institute of Legislation and Comparative Law under the Government of the Russian Federation, Cand. Sc. Law, associate professor — § 1 chap. 1 (co-authored by T. Y. Khabrieva);
   B.    S. Ebzeev, member of the the Central Election Commission of the Russian Federation, Doctor of Law, professor, Honored Lawyer of the Russian Federation, Honoured Reseacher of Science — chap. 5.

English translation of the monograph prepared by
A. M. Belyalova, V. S. Cherenkova,
S. V. Chirkin, M. V. Dudaeva,
Z. B. Khamchieva, M. S. Kuznetsova, Ya. I. Lebedeva, M. G. Mekhtiev

8

            TABLE OF CONTENTS








GROUP OF AUTHORS ................................................ 5
INTRODUCTION ....................................................12

Chapter 1.
JUSTICE: FROM THE ORIGINS TO THE PRESENT ................................................ 21
   § 1. Genesis of Justice in a Traditional Society ............. 21
   § 2. Modern Doctrines of Justice ............................. 49
   § 3. Justice in the Constitutions of the XXI Century ....... 63
   § 4. Functions of Justice .................................. 80

Chapter 2.
MODELS OF JUSTICE IN THE MODERN WORLD ........................................... 96
   § 1. Basic Models of Justice and their Components .......... 96
   § 2. Administration of Justice: International Standards ... 117
   § 3. Justice in the Common Law System ......................146
   § 4. Justice in the Countries of the Romano-German (Continental) Legal Family .................................184
   § 5. Islamic Model of Justice ..............................269
   § 6. Some Conclusions Regarding Current Trends in the Evolution of Justice Models ..................295
   § 7. Model of International Justice: in Search of Answers to Modern Challenges ..................301

Chapter 3.
RUSSIAN MODEL OF JUSTICE: THE GENERAL AND THE SPECIAL .................................. 342
   § 1. Main Stages of Historical Development ................ 342
   § 2. Formation of the Modern Russian Model of Justice .................................................. 364
   § 3. Principles of Justice ...................................370

9

Table of contents

   § 4.  Legal Status of the Judge ............................... 394
   § 5.  Russian Model of Justice
        in Comparative Legal and International Legal Dimensions ..........................................427

Chapter 4. JUDICIARY AND PROCEEDINGS ........................................ 439

Chapter 5. CONSTITUTIONAL PROCEEDINGS........................................ 453
   § 1.  Modern Constitutionalism and Justice
        in the System of Constitutional Guarantees ................453
   § 2.  Legal Nature and Functions of Constitutional Justice .....................................460
   § 3.  Constitutional Court Powers
        in the Russian Federation: Formation and Historical Development ......................473
   § 4.  Types, Organizational Forms, Principles of Constitutional Proceedings...................................478
   § 5.  Decisions of the Constitutional Court
        of the Russian Federation: their Types and Legal Force .............................. 490
   § 6.  Legal Nature of the Constitutional
        Court’s Legal Position of the Russian Federation .................................499

Chapter 6.
CIVIL PROCEEDINGS.................................................. 506
   § 1.  General Provisions ...................................... 506
   § 2.  Stages of Civil Proceedings ..............................514
   § 3.  Types of Civil Proceedings .............................. 518
   § 4.  Judgment: Adoption and Implementation ....................531

Chapter 7. ADMINISTRATIVE PROCEEDINGS ....................................... 547
   § 1.  General Provisions .......................................547
   § 2.  Administrative Proceedings: Main Characteristics .........552
   § 3.  Peculiarities of the Proceedings in Separate Categories of Administrative Cases ............................561
   § 4.  Current Meaning of Administrative Proceedings............. 566

10

Table of contents

Chapter 8.
CRIMINAL PROCEEDINGS IN THE RUSSIAN FEDERATION ................................... 570
   § 1. Criminal proceeding as a system of legal relations .........................................570
   § 2. State of Legislation on Criminal Proceedings ....................................579
   § 3. Optimization of Criminal Proceedings ................ 584

Chapter 9. ARBITRATION PROCEEDINGS ..................................... 592
   § 1. Development of Legislation on Arbitration Courts ......................................592
   § 2. Legal Nature of Arbitration Courts, Types of Arbitration Courts and their Competence ................................................. 604
   § 3. Arbitration Principles and Procedures.................631
   § 4. Execution of Arbitration Award ........................638
   § 5. Development Trends of Legislation
       on Arbitration Courts: Comparative Legal Aspect ......................................... 643

Chapter 10.
MEDIATION IN JUDICIAL DISPUTE
RESOLUTION AND RESTORATIVE PROCEEDINGS ................................................. 657
   § 1. General Provisions ....................................657
   § 2. Mediation, Judicial Conciliation, and Restorative Justice ....................................659

GLANCE INTO THE FUTURE (IN LIEU OF A CONCLUSION) ....................................681

11

            INTRODUCTION



    The first edition of the monograph, published in 2012¹, prepared by the team of authors, which included judges of the Supreme Court of the Russian Federation and employees of the Institute of Legislation and Comparative Law under the Government of the Russian Federation received many reactions from the scientific community and practicing lawyers¹ ². The provisions of the monograph caught the interest of Russian and foreign readers — it was translated into English and published in additional editions in Russia and abroad³. This fact shows that the study of the objective laws of the development of ideas on justice, its doctrines and concepts is important for deepening of scientific knowledge, methodological support of state activities in the organization and implementation of the judiciary, search for answers to new challenges in this area, including the expansion of the boundaries of international justice. The team of authors continues the research and presents an updated edition of the monograph “Justice in the Modern World”.
    Justice is a social institution created with the purpose the rules of society by which “peaceful coexistence of people in society” is possible⁴. Having emerged as a tool for prevention of violent conflict resolution through a mediator that performed the functions of maintaining the established order, developing as a form of overcoming social contradictions, justice appeared from self-regulation of human society and became the same inevitable result of social development as governance and power. In other words, justice can be applied to any community at any stage of evolutionary development (starting with the existence in the form of a local group⁵), since justice is based on the idea of order as a phenomenon that “connects nature

¹ Justice in the modern world / ed. by V.M. Lebedev, T.Y. Khabrieva. M., 2012.

² B.S. Ebzeev. The past, present and future Justice: review on the book: Justice in the modern world: Monograph / ed. by V.M. Lebedev, T.Y. Khabrieva. M., 2012 // Journal of Russian law. 2013. No. 1. P. 123-130; V.E. Chirkin. Justice in the modern world (Review on the Monograph ed. by V.M. Lebedev, T.Y. Khabrieva). M., 2012 // State and law. 2013. No. 2. P. 120-122.

³ Justice in the modern world: monograph / ed. by V.M. Lebedev, T.Y. Khabrieva. Moscow: Statut, 2013; Justice in the modern world: monograph / ed. by V.M. Lebedev, T.Y. Khabrieva. Netherlands: Eleven International Publishing, 2014.

⁴ F.A. Hayek Von. Law, legislation and liberty: modern understanding of liberal principles of justice and policy. M., 2006. P. 91.

⁵ Kh. J.M. Klassen. Evolutionism in development // the early state, its alternatives and analogues: collection of articles / ed. by L.E. Grinin, D.M. Bondarenko, N.N. Kradin, A.V. Korotaev. Volgograd, 2006. P. 38.

12

Introduction

and society, determines the forms of biological and social evolution”¹. In its turn, the idea of order is a consequence of intelligent human activity: awareness of the need for an institution that resolves conflicts arises from the moment of the birth of society, continues throughout its life and ends only with its death¹ ². The recognition of the authority of the person who resolves conflicts, the mediator, that are endowed with the quality of im-partiality³ and determines which rights a member of society has (or does not have) at the very beginning of the genesis of justice entails its identification with fairness. This idea was formulated by a prominent Russian philosopher and lawyer I. Ilyin analyzing the foundations of law: “The founder or elder, resolving the dispute, gave everyone a well-known imperative, prescribing their further behavior in the controversial issue. This imperative pointed out to everyone, first, what they “can”, i.e. what they are allowed, on what they “have a right”, secondly, what they “cannot”, i.e. what is forbidden, on what they “have no right” and thirdly, what they “must” observe. The judge's decision gained some weight and influenced the disputants; this was due, on the one hand, to their trust in his authority, on the other hand, to the fairness of what he determined”⁴.
    The emergence of the state does not mean the emergence of justice, but only gives certain modes (directions, vectors) to its development, since the state receives a legal monopoly on the administration of justice (including a monopoly on the use of force⁵), on determining what is justice and who can exercise it on behalf of the state.
    Developing within the state framework justice follows a certain trajectory. The researchers noted that such a trajectory in a single state (regardless of the differences of civilizational character) as a rule is as follows: from the allocation of the set of rights and duties of the head of state (monarch) of a special public function — “protection of peace” — to the creation of international judicial bodies; from the resolution of ordinary disputes by the head of state — to the judicial system with the organizational separation of the judiciary from its other branches⁶.

¹ G.V. Maltsev. The Social foundations of law. M., 2013. P. 39.

² A.I. Vitsin. Arbitration court in Russian law. Historical and dogmatic reasoning. M., 1856. P. 1.

³   S.I. Victorskij. Russian criminal process. M., 1911. P. 25; O.E. Leist. The essence of law.
     Problems of theory and philosophy of law. M., 2002. P. 97-98.

⁴ I.A. Ilyin. Theory of law and state. M., 2003. P. 78-79. Thus even in the pre-state period, the basis of justice is formed, which will be developed after the appearance of the state.

⁵ R. Nozick. Anarchy, state and utopia. M., 2008. P. 45.

⁶ For example: N.L. Duvernua. Sources of law and court in Ancient Russia: experiments on the history of Russian civil law. M., 1869. P. 3-13; History of court and justice in Russia: in 9 volumes / editor in chief V.V. Ershov, V.M. Sirih. Vol. 1: Legislation and

13