Preconditions for the right to bring claim: state of the art

Occupation: Acting Head of the Procedural Law Sector of the Institute of State and Law of the Russian Academy of Sciences
Affiliation: Institute of State and Law of the Russian Academy of Sciences
Address: Russian Federation, Moscow

Journal name

Gosudarstvo i pravo

Edition

Issue 8

Pages

24-34

Abstract

The article is devoted to the study of the prerequisites of the right to sue in modern conditions. The foundations of the traditional doctrine of the prerequisites and conditions for applying to the court with a statement of claim were laid in the early Soviet period, including in the works of outstanding scientists of the Institute of State and Law of the Russian Academy of Sciences. Currently, procedural legislation in Russia is characterized by a pronounced differentiation of procedural forms of protection. If in the Soviet period all civil cases were considered and resolved by a court of general jurisdiction within the framework of a single civil procedure, today administrative and arbitration proceedings have received the status of an independent form of protection. Accordingly, there was a problem of criteria for distinguishing the entire array of civil cases not only within the judicial system, but also according to the applicable procedural forms of protection of violated rights, freedoms and legitimate interests. We are talking about the jurisdiction of civil cases – the basic prerequisite of the right to sue. Despite the refusal of the legislator to use this term, the main task of the holder of the violated right when applying for judicial protection is still to determine the competent judicial authority. In addition, his duty is also to determine the procedural legislation applicable in the case (this can be called the “applicability of the procedural form”). Another prerequisite for the right to initiate a civil case is the applicant’s compliance with the mandatory pre-trial (claim) procedure for dispute settlement in a number of civil cases. Based on the theoretical analysis of the categories “civil case”, “out-of-court dispute settlement”, research of the legal nature of Civil Law, conclusions and proposals for improving the current procedural legislation are formulated.

Keywords

amendments to the Constitution of the Russian Federation, procedural form of protection, jurisdiction, civil case, private and public law, entrepreneurial and other economic activities, court of general jurisdiction, arbitration court, pre-trial settlement of a dispute

Received

14.07.2022

Publication date

11.09.2023

Number of characters

42010

Cite

GOST	Mikhailova E. Preconditions for the right to bring claim: state of the art // Gosudarstvo i pravo – 2023. – Issue 8 C. 24-34 [Electronic resource]. URL: https://gospravo-journal.ru/S102694520027260-7-1 (circulation date: 03.07.2024). DOI: 10.31857/S102694520027260-7
MLA	Mikhailova, Ekaterina "Preconditions for the right to bring claim: state of the art." Gosudarstvo i pravo 8 (2023):24-34. DOI: 10.31857/S102694520027260-7
APA	Mikhailova E. (2023). Preconditions for the right to bring claim: state of the art. Gosudarstvo i pravo (8), pp.24-34 DOI: 10.31857/S102694520027260-7

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