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Russian Law Journal

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Vol 2, No 4 (2014)
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https://doi.org/10.17589/2309-8678-2014-2-4

Chief Editor’s Note

Articles

7-62 2085
Abstract
The legal reforms of 1864 marked a shift in Russian legal culture from an amorphous, corrupt, pre-modern system of procedure, structure, and customary law to an independent, modern, and westernized system as liberal as that of any nation. These reforms were nearly universally lauded by legal and cultural critics, both at the time they were introduced and in historical accounts. Despite the apparent necessity and success of the new courts, one of the leading figures in nineteenth-century Russian literature (and indeed the history of world literature), Fyodor Mikhailovich Dostoevsky, continually criticized the new system in both his fiction and non-fiction.Through the synthesis of historical, legal, and literary analysis, this study will examine why Dostoevsky had an adverse reaction to the reforms, the literary techniques he used, and whether Dostoevsky presented a viable alternative to the reformed courts. In order to fully comprehend Dostoevsky’s reaction to the reforms, this study will contrast the pre and post-reform judicial systems in Imperial Russia. This study will explore the scope and evolution of Dostoevsky’s criticism of the law through analysis of his pre-reform fiction, including ‘House of the Dead’ and ‘Crime and Punishment,’ his post-reform fiction, including ‘The Idiot,’ ‘Demons,’ and ‘Brothers Karamazov,’ and portions of his experimental literary periodical, ‘A Writer’s Diary.’
63-77 1304
Abstract
Finland was part of Russia’s multi-national empire from 1809–1917. This period of autonomy witnessed several different phases. The phase that started from the ascent of Alexander II to the throne and ended some decades later is known as the ‘Golden Age of Legislation.’ The Finnish Diet could convene from 1863 after a moratorium of a half a Century. This dynamic period witnessed a huge amount of legislative changes. Legislative structures typical to Estate society were dismantled and a legislative basis suitable for a capitalist economy was established. There were not only changes in private law; major changes were also made in other fields of law. For example, principles of criminal law were discussed in the Diet of 1863–64, and changes that modernized and made criminal punishments were enacted in 1866 even though a total reform of the Criminal Code was not realized before 1889. It is important to put these reforms in a societal context. These reforms can be explained by connecting them to the changing power structures of the Empire. Alexander II’s policy aimed at modernizing society and he set about doing this by maintaining an autocratic rule. This allowed Finland to carry out societal reforms; reforms which served the interests of a new commercial class recruited partly from the nobility and partly from the bourgeoisie. In comparison, it is clear that Finnish reforms and Russian reforms of 1864 had a common societal basis in their aim of serving the interests of the economy. However, this led to legal reforms in different fields of law reflecting the economic, societal and political conditions in Finland and in the Empire.
78-90 1283
Abstract
This paper describes the influence, which had already been exerted, and which is still exerted by the Russian Civil Judicial Proceedings Act of November 20, 1864 (CJPA) on the Polish civil proceedings. First, the authors present the history of CJPA’s presence in the Polish territories. Next, they discuss the general significance of this act and its solutions for the process of shaping the Polish civil procedure in the interwar period. Finally, they present selected examples of the regulations and solutions that demonstrate the CJPA’s impact on the Polish civil proceedings. The authors conclude that CJPA exerted a minor impact on the pre-war and present Polish procedural regulations in comparison to the other codes, i.e. the Austrian and German codes. Even today, however, one can find in the Polish Code of Civil Procedure some provisions patterned after the CJPA.
91-103 882
Abstract
Work on judicial reform in the Kingdom of Poland began at the end of 1864 amid the aftermath of the defeated January 1863 uprising and the resulting gradual abolition of the country’s legal and political separation from Russia. It was decided that the Russian Judicial Laws of 1864 were to be implemented in the Kingdom, yet all of their solutions providing for the society’s participation in administering justice were removed during the twelve years long legislative process. Jury trial was abandoned, the election of justices of the peace replaced with their appointment, and the irremovability of judges was severely restricted. Also, the bar did not receive any autonomy. The goal behind the judicial reform in the Kingdom was not only unifying its judiciary with that of Russia but also its Russification. Russian became the official language of the courts and the newly appointed judges were to be Russian lawyers. On the other hand, an undeniable improvement was brought about by the introduction of Russian civil and criminal procedure in the Kingdom. The former remained in force in the central and eastern parts of the independent Polish state until 1933 and the latter – until 1929.
104-113 1020
Abstract
The authors of this article examine historical reasons underlying the enactment of the Statute on Civil Procedure of Russia of 1864 in Lithuania after the declaration of independence in 1918. The Statute of 1864 became effective in 1883, when Lithuania was still part of Russian Empire. In 1918 Lithuania declared independence, but due to the fundamentally changed economic and social living conditions of the society it was impossible to restore the validity of the Third Lithuanian Statute of 1588, which was valid until 1840. It was therefore a logical step to receive the legal acts which were valid until August 1, 1914, including the Statute of 1864. The receipt of the Statute of 1864 is also justified by the fact that the Statute was a modern legal act and borrowed many progressive ideas from the civil procedure law of Western countries, especially from France. The authors, based on historical sources, also examine the problems of the interpretation and applications of the Statute of 1864 by the Lithuanian courts during 1918–40. Such problems were related to the new organization of the court system in Lithuania, lack of qualified lawyers, translation of the Statute from Russian language to Lithuanian language, lack of Lithuanian doctrine of law in the area of civil procedure, disagreement regarding the possibility of the application of the former case law of Russian courts, especially Russian Senate, etc. Nevertheless, the Statute has been successfully applied until the 1940 and it was one of the reason that the Lithuanian Code of Civil Procedure was not adopted until 1940. The Statute of 1864 was again rediscovered after 1990, when the restoration of Lithuanian independence was made, and important changes in the Code of Civil Procedure of 1964 were introduced. The Statute of 1864 was also analyzed during the preparation of the new Code of Civil Procedure of Lithuania of 2002.
114-127 1240
Abstract

The article considers the judicial reform of 1864 and its importance for the development of civil procedural legislation in Ukraine. The author supports the idea that there is a need to improve the mechanism of judicial protection of violated rights and legitimate interests in civil proceedings through judicial reforms and that this can be done by considering the lessons from history. The results of the implementation of the judicial reform of the late nineteenth century on the territory of the Russian Empire offer the best solutions to the problems that are experienced in modern civil proceedings. The way that the legal statutes were implemented, in particular the Statute of Civil Procedure in the Ukrainian provinces which were part of the Russian Empire, will provide an opportunity to analyze the legal aspects and sociocultural phenomena that influenced it. This in turn will enable conclusions to be drawn about the prospects for the harmonization of the national civil procedural law and international standards of justice. In modern conditions these approaches have a great impact on the fundamental underlying ideas of civil justice – optionality and adversarial nature of process, openness and transparency of the proceedings, the court’s independence and impartiality, commitment and enforceability of judgments.

Conferences papers

128-145 1258
Abstract
This brief national report was written for the First Siberian Legal Forum on the ‘Specialization of Judges and Courts: Comparative and Russian Context.’ It gives an overview of the Belgian judicial structure. After a short analysis of the judicial organization before 2014, that presents an outline of the Belgian first instance and appellate courts, particular attention is paid to the comprehensive judicial reforms of 2014. The enlargement of the judicial districts and the introduction of (internal and external) judicial mobility will lead to more specialized courts and judges. The creation of a Family and Juvenile Court and the re-allocation of some civil and commercial competences, between the Justice of the Peace and the Commercial Court, will have the same effect. Nevertheless, this report concludes that the 2014 reform is a missed opportunity to create a large ‘unified’ district court in which all first instance courts are merged.
146-164 1409
Abstract
This article discusses from a critical perspective the issue of judicial specialisation. While accepting the assessment that judicial specialisation is a growing trend in a number of contemporary states, the author sets forth different perspectives and viewpoints on judicial specialisation which clearly show that the excessive enthusiasm should be subdued and that any attempt to specialise judges, court structures and procedures should be carefully balanced against the possible negative impact specialisation could have, both at the general level, and at the level of concrete gains related to administration of justice. The starting point of the analysis is the presentation of multiple forms that judicial specialisation can have. Aspects that are distinguished are judicial specialisation in narrow sense (jurisdictional specialisation) and broader sense (internal, personal and procedural specialisation). Based on the data of the European Commission for the Efficiency of Justice (CEPEJ), it is concluded that there is no coherent or consistent approach to judicial and jurisdictional specialisation in Europe, both in respect to the level of specialisation, and in respect to the forms of specialisation. A discussion of the Opinion no. 15 of the Consultative Council of European Judges (CCJE) shows that the viewpoint of judges and their professional organisations is also sceptical on certain aspects of specialisation, and that specialisation is considered to be potentially harmful for the unity of judicial profession and its main professional and ethical foundations. From the perspective of judicial administration, as demonstrated on the examples of international expert assistance to judiciaries of the Netherlands and Croatia, judicial specialisation is attractive, but often for wrong reasons. There is so far little comparative research on judicial specialisation, and the methodology of assessing its concrete benefits and detriments is not developed. Most importantly, the excessive specialisation may have negative impact on the fundamental values of contemporary judicial systems. Therefore, judicial specialisation should be approached with extreme caution, always assessing its implementation from various angles and in the light of all possible side effects that it may have to good administration of justice and core judicial goals and values.
165-175 1279
Abstract
The issue of how much specialization is required of a modern judiciary is debated in many legal systems, some of which have a long tradition of generalist judges. The increasing complexity of contemporary society and the emergence of new legal fields, dominated by technical concepts, can be seen as the perfect rationale for the establishment of specialized courts. It is easy to think that a new array of complex cases, raising sophisticated issues of fact and law, deserves to be adjudicated by judges who are highly skilled in the subject matters at stake. New specialized courts could also contribute to the solution of the problem affecting various legal systems, that is, the huge caseloads burdening ordinary courts. And yet, judicial specialization may also have significant drawbacks: among others, the danger of the ‘insularity’ of specialized courts, a tendency to self-seclude inside the restricted boundaries of the matters falling within their expertise. After some brief remarks on the advantages and disadvantages of judicial specialization, this essay elaborates on the state of the issue in Italy, where recent reforms and others announced seem to indicate a new trend in favor of the establishment of more specialized divisions within ordinary courts.
176-186 1422
Abstract
This article touches upon the different ways of specialization of courts and judges that exist under the legislation of the Russian Federation. The lack of a unified and circumspect approach is noted. The formation of specialized courts, according to the national legislation, takes the form of their establishing within the existing subsystems of regular and arbitration courts. As for the specialization of judges, it is more diversified and is presented by either creation of separate types of procedure (special proceedings, proceedings on cases arising from public relations and some other), or by introduction of special rules on jurisdiction that establish competence of specific courts to consider cases of a particular category: on the compensation for the excessive time taken to consider a case, on the adoption of a child by a foreign national and others.An analysis of existing literature on the issue in question shows that Russian scholars support the idea of judges’ specialization. Against specialization of courts the following arguments are brought: significant material costs, not being in accordance with the small number of cases decided by specialized courts; problems with access to justice; and the necessity to give special training to narrowly specialized judges.
187-203 1161
Abstract
The Constitution of the Republic of South Africa (1996) and various acts of Parliament establish courts with diverse powers. The judiciary is required to be multi-skilled for the proper performance of multitasks in order to protect the constitutional right of everyone to have access to court in civil disputes. This article deals with the aspects of such skills, tasks and access to justice. The article demonstrates that a well diversified structure of courts exists and that the judiciary is constitutionally and statutorily required to be possessed of the necessary diverse skills not only to perform multitasks but also to ensure that the rights of everyone to have access to justice is properly protected. In this regard the article sets out the course of a civil trial and the requirements of a class action. As regards the latter, it is contended that class actions put new demands on South African judges and courts to be multi-skilled and multitasked in order to guarantee multiaccess to large numbers of litigants who are joined in such actions. To this extent, judges will need the necessary expertise (through experience and training) to ensure that they remain multi-skilled and well-equipped to perform the multitasks that are inherently part of class actions.

Book Review Notes



ISSN 2309-8678 (Print)
ISSN 2312-3605 (Online)