Incorporation of the Supreme Commercial Court of the Russian Federation in the Supreme Court of the Russian Federation Does Not Solve the Problem
By virtue of the fact that amendments to the Constitution of the Russian Federation are introduced by the draft law, the latter is explicitly of a framework nature. One can only to guess about the extent of transformation of the Russian judicial system due to the above amendments of the Constitution of the Russian Federation. It remains unclear what structure of courts of general jurisdiction and arbitration courts is going to be and in what way arbitration and procedural legislation and civil and procedural legislation are going to be reformed due to the forthcoming reform of supreme courts.
Together with the draft law, the following document - Justification of the Need to Make Amendments to the Constitution of the Russian Federation As Regards the Supreme Court of the Russian Federation and the Prosecutor's Office of the Russian Federation -- (hereinafter, the Justification) was published. It is to be noted that in the above document only one paragraph is dedicated to justification of the reform of supreme courts. It reads as follows:
"...It appears that the restructuring of the judicial system will permit to ensure a unified approach in administration of justice both in respect of individuals and legal entities, exclude the possibility of denial of judicial defense in case of a dispute as regards jurisdiction of the case, establish common rules of organization of legal proceedings and secure uniformity in judicial practice ..."
The merger of the Supreme Commercial Court of the Russian Federation and the Supreme Court of the Russian Federation is not irrational. Implementation of the above reform will ensure uniformity of judicial practice in interpretation of norms used both in disputes settled in courts of general jurisdiction and those settled in arbitration courts. For example, such norms may include provisions of general parts of the Civil Code of the Russian Federation and the Tax Code of the Russian Federation or general provisions both in respect of individuals and legal entities (individual entrepreneurs) and provisions as regards different types of civil-law contracts.
However, it is to be noted that the possibility of a merger of civil and arbitration proceedings is rather limited due to the fact that for consideration of different categories of cases certain qualification of judges is required. At present, both in the system of arbitration courts and the system of courts of general jurisdiction an effective specialization among judges and panels of judges has been formed. For example, in district (city) courts of general jurisdiction administration of justice on criminal and civil cases is normally vested in different judges. In arbitration courts, consideration of different categories of cases is vested in certain judges and panels of judges, too. For obvious reasons, such a specialization of judges (panels of judges) will not disappear. So, in the single supreme court a certain specialization of judges in consideration of civil and criminal cases, as well as economic disputes is likely to be preserved. Thus, the merger of supreme courts within the frameworks of the single Supreme Court or preservation of those courts as independent ones is not a principal issue.
One of the reasons for justification of the need in a merger of supreme courts is a statement about "exclusion of a possibility of denial of judicial defense in case of a dispute about jurisdiction of the case". Actually, the problem of division of the competence between courts does exist. It is particularly explicit in the "competition" between arbitration courts and courts of general jurisdiction.
The problem is caused by existence in the rules of determination of jurisdiction in the Arbitration Procedure Code of the Russian Federation (APCRF) and the Civil Procedure Code of the Russian Federation (CPCRF) of irremovable evaluation categories, such as "economic disputes", "cases related to carrying out of entrepreneurial activities and other business activities" and other.
Handling of the problem of the conflict of competence between arbitration courts and courts of general jurisdiction has been carried out for many years on the legislative level. So, the institute of special (exceptional) jurisdiction of arbitration courts was introduced into the 2002 edition of the Arbitration Procedure Code of the Russian Federation. It is to be noted that the list of cases which fall within jurisdiction of arbitration courts tends growing, for example, in Article 33 of the APCRF as amended in 2009 and 2011.
In our view, the solution of the problem of conflict of competence of courts consists in regular identification of problem disputes in judicial practice and elimination of factors which give rise to them by way of making specifying amendments to codes of judicial practice. Incorporation of the Supreme Commercial Court of the Russian Federation into the Supreme Court of the Russian Federation does not solve the problem, but regenerates it in handling of issues as regards assignment of one or another case to different judges and panels of judges.
So, the justification of the need proposed in the draft law does not appear to be sufficient enough.
М.P. Goldin, Analyst-Lawyer of the Legal Studies Research Center.