Volume 04 Issue 12-2024
23
International Journal Of Law And Criminology
(ISSN
–
2771-2214)
VOLUME
04
ISSUE
12
P
AGES
:
23-28
OCLC
–
1121105677
Publisher:
Oscar Publishing Services
Servi
ABSTRACT
The article describes the principle of judicial leadership in the conduct of court cases, the brief history of its formation
and scientific views on its essence. The role of the court in the civil procedure changes depending on time and space,
therefore, the need to conduct scientific research on what the role of the court is for today is revealed.
KEYWORDS
Role of judge in civil proceedings, procedural activity of the court, the principle of active case management, the
principles of the civil process.
INTRODUCTION
During the last 100 years or so, a central theme in civil
procedural theory has been to find a balance between
on the one hand the parties’ liberty to freely dispose
of
their private rights and obligations, also within the
litigation process, and, on the other hand, the powers
of the judge or, to use more modern terminology,
judicial case management (1).
Currently, the attitude to the principle of judicial
leadership in civil procedural law is different. Some
authors distinguish it as an independent principle,
some as a function of the civil process, and the third
group of scholars study it within the framework of
other principles.
The main rules, principles of civil procedural law in
Uzbekistan and some aspects of their application in
judicial practice have been studied in the scientific
research
works
of
Sh.Sh.Shorakhmetov,
E.Egamberdiev,
M.K.Azimov,
S.Toshnazarov,
M.M.Mamasiddikov,
Z.N.Esanova,
S.A.Yakubov,
M.A.Doniyorov and S.A.Maripova.
D.Yu. Khabibullaev has been engaged in the principles
of civil procedural law and issues related to their
Research Article
THE PRINCIPLE OF ACTIVE CASE MANAGEMENT IN CIVIL PROCEEDINGS
Submission Date:
December 02, 2024,
Accepted Date:
December 07, 2024,
Published Date:
December 12, 2024
Crossref doi:
https://doi.org/10.37547/ijlc/Volume04Issue12-04
Khusainova Umida Abdikhalikovna
Doctoral Student, Higher School of Judges under the Supreme Judicial Council of the Republic of Uzbekistan
Journal
Website:
https://theusajournals.
com/index.php/ijlc
Copyright:
Original
content from this work
may be used under the
terms of the creative
commons
attributes
4.0 licence.
Volume 04 Issue 12-2024
24
International Journal Of Law And Criminology
(ISSN
–
2771-2214)
VOLUME
04
ISSUE
12
P
AGES
:
23-28
OCLC
–
1121105677
Publisher:
Oscar Publishing Services
Servi
application in judicial practice as a separate object of
research. In his opinion, it is time to establish in the
legislation the rules on the procedural activity of the
court as a separate independent principle in order to
ensure the full determination by the court of the
circumstances relevant to the case and the observance
of the norms of substantive and procedural law (2).
However, the principles that determine the role of the
parties and the court in civil court proceedings, namely
the principle of adversarial proceedings and the
principle of procedural leadership of the court or the
principles of judicial activity, have not yet been
analyzed as a separate, comprehensive object of
research.
This context serves as a catalyst for further
investigation into the subject. This study will explore
the concept, historical development, and underlying
principles of judicial leadership within the context of
civil litigation.
A brief examination of the history of the Civil
Procedural Codes in Uzbekistan reveals that four
distinct procedural codes have been enacted and
enforced in the country.
The first Civil Procedure Code
(CPC) of the Uzbek SSR
was adopted on October 22, 1927 and entered into
force on January 1, 1928. This Code was published in
Russian language, and prior to this Code, the norms of
civil judicial proceedings were implemented based on
the rules of Sharia (3).
This Code establishes the unlimited activity of the court
in the process. In particular, the court must make every
effort to explain the real rights and mutual relations of
the parties, not limited to the explanations and
materials provided; the court must, through questions
asked to the parties, help them to establish the
circumstances necessary for resolving the case and to
confirm them with evidence; it must actively assist the
person who has applied to the court in protecting his
rights and legitimate interests, and must not use legal
ignorance, illiteracy, and similar circumstances to their
detriment; at the same time, the court must explain to
the party who has applied their rights and necessary
formalities, and warn them about the consequences of
procedural actions and inaction (Article 5).
Such unlimited powers of the court in court
proceedings were also reflected in the subsequent Civil
Procedure Code. This code, adopted on March 23, 1963
and put into effect on January 1, 1964, contained the
following norms related to the role of the court in the
process. The court is obliged to take all measures
specified in the law to comprehensively, fully and
objectively determine the true state of the case, the
rights and obligations of the parties, not limited to the
submitted materials and statements. The court must
explain to the persons participating in the case their
rights and obligations, warn them of the consequences
of taking or failing to take procedural actions, and
assist the persons participating in the exercise of their
rights (Article 15). Each party must also prove the
circumstances that it bases its claims and objections
on. Evidence is presented by the parties and other
persons participating in the case. If the submitted
evidence is insufficient, the court shall invite the parties
and other persons participating in the case to submit
additional evidence or collect it on its own initiative
(Article 53) (4).
To investigate the reasons behind the court's extensive
powers in civil proceedings, this study will examine the
scholarly literature from the Soviet era.
In the period before the revolution of 1917, most of the
proceduralist scientists, in describing the court's
activity, show the combination of passivity and activity
of the courts based on two main principles, the
Volume 04 Issue 12-2024
25
International Journal Of Law And Criminology
(ISSN
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2771-2214)
VOLUME
04
ISSUE
12
P
AGES
:
23-28
OCLC
–
1121105677
Publisher:
Oscar Publishing Services
Servi
adversarial and inquisitorial (based on judicial
investigation) principles.
E.V.Vaskovsky was one of the first to conclude that the
principle of judicial leadership should be distinguished
as a separate independent principle. He shows two
sides of the leadership of the court in the process: 1)
formal (leadership of the court); 2) material
(instructive) principle (5).
The necessity of the inquisitorial principle in describing
the legal aspect of the process is justified to a certain
extent by the court's obligation to establish the truth
(material truth) in the case. In order for the court to be
able to establish the material truth, it must exercise
unlimited freedom in studying the factual materials of
the case. Its "tying its hands with the principle of the
adversarial process" is, in fact, a recognition that the
goal of the process is not to achieve the material truth,
but only the formal truth.
Thus, the works of procedural scholars of the pre-
revolutionary period recognized the need to combine
the activity and passivity of the court in resolving the
case. The court should exercise (be active) in the
official (formal) side of the process (official
leadership), and thus also exercise substantive
leadership. While formal leadership ensures legality,
consistency, and procedural speed, substantive
leadership ensures the determination of the
substantive truth.
As is known, in the Soviet period after the revolution,
due to the intervention of the state (government) in
personal affairs, large-scale changes also occurred in
the field of procedural principles. The first Soviet Code
of Civil Procedure of the RSFSR of 1923 resolved the
issue of the role of the court in the process in favor of
the full activity and independence of judges in civil
proceedings. The court had the right to collect
evidence on its own initiative and demand it from the
party in need of assistance and deserving it. Such
activity of the court was reflected in a number of
articles of the Code of Civil Procedure of the RSFSR of
1964 (in particular, Articles 14, 34, 50, 195, 294, 305). In
describing the court of this period, the roles of the
court were noted - leadership, directing and
organizing.
During this period, V.M.Semenov distinguished the
procedural activity of the court as an independent
principle. According to it, the active leadership
exercised by the court in the consideration of civil
cases is aimed at: determining the truth in the case; to
ensure the opportunity for persons participating in the
case to use and dispose of their material and
procedural rights; to eliminate the causes of violations
in order to protect the rights and interests of citizens,
organizations and the state; will be directed to
strengthen the legitimacy and communist education
(6).
The court ensures control over the exercise of material
and procedural rights by the parties and other persons
participating in the case; actively intervenes in the
material and legal relations of the parties; goes beyond
the limits not only of the amount of the claim, but also
of the basis of the claim; the court of cassation
(supervision) instance - checks the appealed
(protested) decision in full and with respect to all
persons participating in the case; in some cases, on its
own initiative, has the authority to ensure the
execution of the court decision and its timely
execution.
It can be said that such powers of the court are based
on a unique understanding of free legality and parties'
disputes in the Soviet civil procedural law.
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04
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OCLC
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1121105677
Publisher:
Oscar Publishing Services
Servi
The specificity of the Soviet civil procedural law is
defined on the basis of the ideological and political
principles based on the Soviet social and state system,
as well as the existing socio-economic conditions in the
country. The main content of the principle of
procedural activity of the court is based on the need to
determine the objective truth directly defined in Article
14 of the 1964 RSFSR GPK.
According to S.V.Lazarev, the principle of judicial
procedural activity was not weakened by the
separation of the principles of free legality and
adversarial proceedings, since they were already
limited in nature. VM Semenov, however, combined
the violated parts of these principles into the principle
of judicial procedural activity, in fact, showing the fact
(7).
Thus, in the Soviet period of the development of civil
procedural law, the court was as active in the formal
side of the process as it was in the legal side. In contrast
to the level of judicial activity in the pre-revolutionary
period, the activity in the legal side of the process
increased somewhat. Balanced judicial activity turned
into practically unlimited procedural activity of the
court. After the collapse of the USSR, a conceptual
change in the civil process took place in Russia. The
principle of procedural activity of the court, developed
by V.M. Semenov, could not have arisen and existed
without the appropriate political conditions. With the
change in political conditions, the basis of this principle
was also called into question. Its place was taken by the
temporarily forgotten principle of judicial leadership.
At this point, M.Sh.Patsatsiya differentiates between
the principle of court leadership in the process and the
principles of procedural activity of the court as follows.
The concept of court leadership in the process is based
on the following ideas: a) dispute resolution as the goal
of court proceedings; b) priority of the principle of
dispute between the parties in the process; c) formal
(official, procedural) reality. The concept of the court's
procedural activity is based on the following ideas: a)
protection of rights as the goal of court proceedings;
b) priority of inquisitorial public principles in court
proceedings; c) objective (material reality) (8).
O.P.Chistyakova, who conducted a separate study on
the principle of judicial activity in civil proceedings,
came to the conclusion about the dual legal nature of
judicial obligations: Some obligations of the court must
correspond to the procedural rights of interested
persons. Their existence is associated with the need to
protect personal interests. The court fulfills its
obligations only in response to certain actions of
persons participating in the case. The court does not
act on its own initiative. The court is “passive”. Other
obligations are not related to the rights of persons
participating in the case (ex officio obligations). They
are established before the state and society (in the
public interest). In this case, the court acts
independently of the initiative, desire and will of
interested persons. The court acts publicly, openly,
officially (ex officio). The court is “active”. The
fulfillment of ex officio obligations is ensured by special
procedural sanctions, and the possibility of annulment
of illegal court decisions by a higher court (9).
According to K.L.Branovitsky, civil proceedings cannot
and should not exist only as formal (official)
observance of procedural norms and rules. Material
truth is of great importance. In addition, the court
should not be the only subject that knows and applies
the law, but should involve the parties and their
representatives in understanding the law. One of the
tasks of the court is to find ways to resolve the issues
raised together with the parties (10).
According to the rule on proof, each party is obliged to
prove the circumstances that are the basis for its claims
Volume 04 Issue 12-2024
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International Journal Of Law And Criminology
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VOLUME
04
ISSUE
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OCLC
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1121105677
Publisher:
Oscar Publishing Services
Servi
and objections. The court determines which
circumstances are relevant to the case, which of the
parties must prove them, and puts them for discussion,
even if the parties did not present these circumstances
as evidence. Evidence is presented by the parties and
other persons participating in the case. The court may
invite them to submit additional evidence. If the
presentation of additional evidence creates difficulties
for the parties and other persons participating in the
case, the court shall assist them in collecting evidence
upon their request. (Article 57). That is, the court's
authority to collect evidence on its own initiative has
been abolished.
Of course, this happened in connection with the
changes in the political, economic and social conditions
prevailing in the state, as discussed above.
In the new Civil Procedure Code of the Republic of
Uzbekistan, adopted on January 22, 2018 and entered
into force on April 1, 2018, the above norms were left
unchanged in content, only the court's task of
"providing assistance" was replaced with the phrase
"assistance". Although the court's authority to collect
evidence on its own initiative was abolished, the
content requiring the court to play an active
managerial role during the process was preserved.
However, one of the main tasks of judicial and legal
reforms today is to strengthen the adversarial principle
in court proceedings, increase the activity of the
parties in the court process, and create broad
opportunities for them to collect evidence on the case
and present it to the court. Because the second
direction of the Action Strategy, called “Priority
directions for ensuring the rule of law and further
reforming the judicial system,” also envisages the
comprehensive implementation of the principles of
independence and impartiality of the court, adversarial
proceedings, and equality of rights of the parties in the
judicial process. As a logical continuation of these
reforms, the second direction of the new Development
Strategy of Uzbekistan for 2022-2026 also specifically
emphasizes the need to implement the principles of
true equality and adversarial proceedings in order to
achieve justice and the rule of law.
In the process of updating the civil procedural
legislation of the Republic of Kazakhstan, which is
considered a neighboring country, special attention
was paid to this problem, and in 2020 legislative
reforms were carried out aimed at fundamentally
revising the role of the court in the civil process of the
Republic of Kazakhstan. When developing the draft
law, the international experience of such countries as
Germany, Great Britain, the USA, Singapore, Canada,
Georgia, and Ukraine was taken into account. It is
noted that many changes in determining the role of the
court in the process were based on the German
procedural model, in which the court's obligation to
provide guidance explanations (Hinweispflicht) was
one of the important elements (11).
In particular, the role of the court in the process of
collecting and examining evidence in civil proceedings
has been updated. The court is given the opportunity
to collect evidence on its own initiative, to carry out
individual actions to clarify the true will and protected
interests of the parties by clarifying their positions. This
is aimed at an impartial and complete resolution of the
dispute. However, the relationship of these rules with
the principle of adversarial proceedings needs to be
studied in more depth.
Thus, as we have seen above, the role of the court in
the civil process changes depending on the time and
place, depending on the conditions of each country,
the purpose of the process and the purpose of the
judicial authorities.
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VOLUME
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OCLC
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Publisher:
Oscar Publishing Services
Servi
In this regard, it is necessary to comprehensively
analyze the role, tasks, obligations and powers of the
court established in the Civil Procedure Code of the
Republic of Uzbekistan from the point of view of
current requirements and to determine the content of
the “principle of judicial leadership” suitable for
Uzbekistan by developing a model that clearly defines
the tasks of the court during the process. Of course, it
is necessary to take into account such factors as the
current workload of the judge, the type and content of
the case being considered, the demands of the parties,
and the participation of lawyers in the consideration of
the case. It is necessary to study the relationship of this
principle with the principle of adversarial proceedings
separately. Because, unlike other types of processes,
the basis of civil proceedings is adversarial principle.
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