Judicial errors in applying the rules of improper litigating substitution

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Judicial errors in applying the rules of improper litigating substitution

Journal Title: Юридические науки и образование - Year 2019, Vol 60, Issue 60

Abstract

It is analyzed the problematic issues related to the application of the procedural law concerning the improper litigant substitution in the civil proceedings. The authors consider some aspects related to the interpretation of certain principles of law, such as justice and legality, as well as the fundamental principle of civil law – the protection of a bona fide party to the contract. These principles are the key ideas on which civil law and civil procedure are built. Their correct application is the basis for building a law-governed state in Russia. The objectives of the study is to identify contradictions in the interpretation of the concept and content of the procedural status of the plaintiff and the defendant in court, the analysis of the rights and legitimate interests of bona fide purchasers, the detection of norms on holding parents liable for violating the property rights of minor children. Based on the analysis of the law and judicial practice of its application, it can be concluded that it needs to be amended. The purpose of the article is to analyze the judicial acts of Volgograd courts on the application and interpretation of the rules of the Code of Civil Procedure concerning the substitution of persons in civil proceedings. With the help of the methods of scientific knowledge, first of all, the method of system analysis, it is found that the courts believe that in order to protect the property rights of minors it is possible not to comply with any rules of substantive or procedural law. It is pointed out that the protection of the child’s rights is a priority of this state; however, in practice, the courts raise a question whether is it possible to ensure the interests of the child at the expense of a bona fide party to a civil transaction? The example below confirms that, in some cases, the courts resort to such violations, albeit for a good purpose. It is proposed to make integrated changes to the current legislation regarding the issuance of certificates on the assignment of the parent capital for the purchase (construction) of real estate objects, namely, to impose on the Pension Fund of the Russian Federation the obligation to notify the body authorized to register real estate objects and transactions with them about each fact of the issuance of such a certificate, and impose on this body the subsequent obligation to verify the origin of the funds paid for the respective real estate. Thus, the registration body will be informed in advance about the upcoming registration of the property purchased (constructed) to be funded by the parent capital and, accordingly, may either block or force to allocate shares in the property for each member of the family.

Authors and Affiliations

Natalya Kvitsiniya, Elvira Osadchenko

Keywords

judicial acts; parties in civil proceedings; minor children; maternity capital; judicial practice; substitution of the defendant; attorney; bona fide purchaser.

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EP ID EP649614
DOI 10.25108/2304-1730-1749.iolr.2019.60.241-260
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