Cite this article as:

Nikolajchenko O. V. Features of “Risk” and its Manifestation in the Performance of the Court’s Procedural Duties. Izv. Saratov Univ. (N. S.), Ser. Economics. Management. Law, 2018, vol. 18, iss. 4, pp. 477-482. DOI: https://doi.org/10.18500/1994-2540-2018-18-4-477-482


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Russian

Features of “Risk” and its Manifestation in the Performance of the Court’s Procedural Duties

Introduction. Solving specific social and important tasks, industry legislation and law enforcement practice did not develop a unified approach to the definition of “risk”, which is predetermined by its versatility and its ambiguous interpretation in scientific works and modern legislation.

The aim of the study is to develop theoretical provisions that reveal the features of risk in civil proceedings. The author pays special attention to the most controversial features of risk – its applicability to the actions of the court, performing procedural duties. The article draws attention to the meaning of “risk” in the scientific and empirical aspects. The dialectical analysis allowed to evaluate the results of lawmaking and judicial law enforcement, historical and comparative methods of scientific knowledge contributed to an objective assessment of the quality of the current procedural legislation, the system method allowed to interpret the categorical apparatus on the example of the study of “risk”, the method of legal modeling served as a justification for proposals to improve the legislation.

Results. Risk is a category specific not only to the identification of the interest of the persons involved in the case. Risk, having an objective and subjective justification, is a fundamental category of procedural law, in which the freedom of choice of subjects of law is not limited only by permissible and administrative means, but it is justified by regulatory requirements for the obliged subjects. The traditional provision of procedural legislation on the procedural risks of the parties and other persons involved in the case is quite common and applicable for the court performing procedural duties.

Conclusion. In some cases, the reference to legislation providing for “risk” for the subjects of law is not always well-founded and reflects its ontological nature. The category “risk”, having a wide purpose in procedural law, expresses an example of the dispositivity of the Russian civil procedural legislation with the peculiarities of its legal regulation of certain legal institutions, on the one hand, and the procedural impossibility of determining the consequences of a legal action that may occur for the subjects of law applying it, on the other hand.

References: 

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