Convergence of Private and Public in the Civil Procedure

Abstract

The paper examines the manifestation and differentiation of private and public principles in civil proceedings. The author starts from the direct relationship between the nature of the violated or disputed right or legitimate interest to be protected and the procedural form of its protection. It is shown that civil legal relations are not always based on the equality of the subjects participating in them. In addition, the state participating in a civil legal relationship pursues public interests, as a result of which the subject of civil and arbitration proceedings in a number of cases is not only private law, but also public law. The legislator has not formulated adequate procedural rules for considering these cases.

The author proposes to include in the Code of Civil Procedure of the Russian Federation and the Commercial Procedure Code of the Russian Federation sections regulating the procedural features of the consideration of cases with the participation of the state, or to consolidate in the Code of Administrative Procedure of the Russian Federation a single criterion for determining public law cases subject to consideration according to the rules of administrative proceedings. The public ground of the civil procedure is also determined by the public legal function of the court administering justice. Because of this, the court does not have the right to change legal norms, nor, at its own discretion, make conclusions about their legal force. The compliance of the judicial conciliation procedure with the general principles of legal proceedings as a public legal activity is questioned.