Are we ready for law-bound society? The current tendencies of development of russian judicial system
Expert: Kliment Rusakomsky
Managing partner of Legal Group Paradigma
Would our civil society, the judiciary and the business community be ready to carry out business deals, if there were a more advanced law-bound society? Trends in the development of the judicial system in Russia are commented by Kliment Rusakomsky, managing partner of law firm "Paradigma", which has experienced in presentation of commercial interests in the courts through more than ten years.
«Having a work experience at the market of legal services through more than ten years, I and my colleagues not once have faced with the changes in the Russian legislation and its enforcement practice. Denote that all stages of the formation of the judicial system have benefited: and judges, and lawyers had significant professional growth. Sometime the term of judicial practice which we had was quite indefinite, while there was no the real responsibility of judges and parties’ representatives for their actions. Nowadays we can claim, that a good judicial structure, especially arbitration is established.
WITH A BILL OF EXCHANGE
The law follows the economy which is always moving forward. That is natural: the right should be inert and does not change continuously, as it, unfortunately, sometimes happens in our country. Due to the active development of the economy and the backlog of legislation the considerable drawbacks of realizing how to analyze any case are formed. While a lot of economic processes were new for the country at the beginning of perestroika, the legislator had no any experience of this cases’ solutions. I vividly remember the case, in which we participated in the court hearing on bill obligations in Kemerovo in 2001. Our company pioneered the judicial practice of the bills of exchange, and our opponents were also good prepared , but the judges did not comprehend our discussion. So they announced a break, went to a nearby store of legal literature and then studied the exchange law for a few hours.
The Act of promissory note and bill of exchange signed yet Council of People’s Commissars still regulates the special area of bill legal relationships. At the example of bill disputes it can be showed how our legislation was developing, how the liberalism was born or, in opposite, how " nuts has been twirled "- it had being varied on state system needs. For instance, the schemes of bills exchange were used on purpose to regulate debt commitments in the energy system.
However, those directors were unable to exploit the schemes of bills of exchange properly that led to the formation of broad judicial practice of cases in this area of law. There is another case of our practice that demonstrates the attitude to such securities as a bill of exchange. The town-forming enterprise in the Kursk region was issuer of bills of exchange. Our company "Paradigma" filed a require for payment of the bill debt commitment, and then brought the suit to the court. At the time of bill exchange presentation the representatives of the promisor attempted to destroy the original document, so subsequently we had to present a color copy of document, and the original bill of exchange was hidden — just in case if it is still needed. It was not a wrong decision: the opponents tore up a copy of the bill of exchange and even tried to arrest our lawyer, who kept the original. In the end, the debt commitments of the bill exchanged were performed.
For instance, there is another case. When we arrived on purpose to claim the bills of exchange, issued by a large Murmansk company, the legal possessor of which was our client, we were just gone away. So the notary was asked to make the protest on the fact of refusal of payment. It was dangerous: the head of the company implied at the presence of the «roof». The protest was made, but at out of town, in an open field, on the hood of the car. However, it caused some repercussions for the notary, despite of the legality of her actions: she was recognized by the court as being incapable and was forcibly hospitalized and forced to take drugs. The bailiffs were afraid to do anything. Only when we claimed to arbitration court with the statement of recognition insolvency (bankruptcy) of the drawer, the company backtracked. Our actions were the impetus for the restructuring of the debts and its subsequent repayment.
In 1990-2000 the mentality of the judicial structures was not the same as it is nowadays. The previous judicial system often used to make unjustified decisions. In two courts the practice of the same dispute, regulated by the same rules of substantive law could be completely different from each other. The system was full of corruption and so-called «telephone law».
There were cases in which the bailiffs refused to perform court orders because they were afraid that they would be evicted from the building, located on the territory of the organization, which was defendant of this court decision. Now there is no any the fear of large corporations. Judges are free in their decision-making, and it is more difficult to defend the interests of large companies in the courts. The judiciary became more qualified. If ten years ago, financial lawyers had broad knowledge of legislation in most cases, while judges did not have, now more often the opposite situation happens. In addition, the judges are aimed to not make decisions superficially, but aimed to realize its essence, including detailed understanding of specific laws. For instance, our lawyer won the civil process, explaining convincingly to the judge what meaning the legislature has invested in these rules of law. All three courts have accepted the view of our lawyer. Most recently, it was impossible.
IS THE SOCIETY READY FOR SUCH CHANGES?
The social sense of justice stepped forward largely. The world public tendencies have changed significantly. Earlier on the first place there were interests of the individual, nowadays, on the contrary, the state and social interests go forward. For instance, the secrecy of correspondence was used to be taken seriously — it was sacred, now the security of the state and society is more important. There is a change of values.At the same time our citizens are not so angry as at the post-perestroika period when banditry was flourishing. Today a bandit is recognized as a marginal, and companies do not wish to contact with crime during the business, they eager to have purity and transparency of transactions and try to eliminate any «informal» problem-solvings. Therefore, the recent murder of lawyer Tatiana Akimtseva is not a flashback of the 1990s. This is, unfortunately, the professional risk. The era, where the cult of powerful and cunning was flourished. where the market was divided, will never return. Nowadays the state government has a significant influence on social processes. Sometimes it seems that it is even too much (for example, the arrest of Yevtushenko).
The feature of human interests has been fluctuating between the cult of personality and the cult of society. It is impossible to say that one is good and another one is bad. But I suppose that the current situation is temporary, and we are about at the human worldview changes: we will make the interests of the personality as a social priority. And then every judge and every participant of the civil process will analyze the law sophisticatedly and meticulously, and will not be afraid to present own view of the situation».