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Disclosure of Evidence in the Commercial (Arbitrazh) Proceedings of the Russian Federation

ФИО студента: Igor Liashenko

Руководитель: Margarita Pavlova

Кампус/факультет: Faculty of Law

Программа: Lawyer in the Sphere of Justice and Law Enforcement (Master)

Оценка: 8

Год защиты: 2021

The administration of justice in a modern democratic state cannot be imagined without adherence to the guiding adversarial principle, whereby each party to a dispute must prove the circumstances to which it refers in support of its claims. This principle is enshrined in the Arbitration Procedure Code of the Russian Federation. Proving is a complex process when the required fact is confirmed by information extracted from various sources. This information is called evidence. It seems necessary to continue the development of such an institution as the disclosure of evidence since this process allows the court to see the full picture and resolve the case, guided not by guesswork and speculation, but by reliable facts. In this regard, the purpose of this study is to develop a unified approach to the procedure for disclosing evidence in the framework of the arbitration process as an independent stage of procedural proof, theoretical and practical substantiation of the main directions of improving the legal regulation of the procedure for disclosing evidence in the arbitration process. In the first chapter, the author conducts a study of the history of the development of the institution of disclosure of evidence in our country, from its appearance in the Russian Empire to the current legislative regulation. The conclusion is made about the guiding principle of material truth, to which the institution of disclosure of evidence is subordinated in its current state. The second chapter of the study is devoted to the procedure for disclosing evidence in the arbitration process. It is concluded that such a tool for collecting evidence as a lawyer's request is ineffective due to legislative restrictions and its availability to a limited number of persons, which necessitates its further development at the legislative level. A study of the influence of the principle of good faith on the disclosure of evidence in the arbitration process was carried out. It seems appropriate to extend the right of the court to refuse to satisfy the application or petition if they were not filed promptly by the person participating in the case, due to abuse of his procedural right and are aimed at disrupting the hearing, at regulating the process of presenting and disclosing evidence. The author analyzed the mechanism for submitting new (additional) evidence to the court of appeal, concluded that it is necessary to consolidate the general rule on the inadmissibility of their presentation when considering a case in the court of appeal. The result of a systematic study of the existing regulation of the procedure for disclosing evidence was a proposal to increase the importance of the preliminary court session, options for measures to improve the procedure for disclosing evidence at this stage of preparing the case for trial were proposed. The third chapter of the study examines the experience of common law countries - the founders of the institution of disclosure of evidence, since the structures that have developed there make it possible to improve the domestic legal system, while getting rid of possible primary mistakes in advance. The research conducted by the author resulted in proposals for improving the existing regulation of the institution of disclosure of evidence in the arbitration process.

Full text (added May 20, 2021)

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