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INTRODUCTION

Research of problems of remedial representation in civil legal proceedings is not a new theme in a science of the civil law of procedure. Many works of outstanding scientists-protsessualistov have been devoted it.
Despite this, civil remedial representation from the point of view of its basic concepts, places and roles in civil procedure, parities with other legal phenomena inherent in this legal science, remains substantially «terra incognita» the civil law of procedure. Seeming evidence of answers to many questions of judicial representation quite often can play with the researcher a malicious joke, pushing it on the way of the least resistance consisting or in superficial commenting of the chapter of V Civil code of practice, or in the mechanical description of those actions which followed make to the representative for protection represented in court. Neither in that, nor in other case the researcher not in a condition to understand the valid sense of existence of remedial representation. Research of problems of remedial representation partly is beyond a science of the civil law of procedure as the representation institute is known not only to civil procedure and continues to possess a significant amount of similar lines without dependence from a branch accessory of separate norms. For this reason the initial beginning of the present work is the understanding of remedial representation as the difficult legal phenomenon which are the complex legal institution, uniting the public and private-legal beginnings of civil procedure. Besides, as the remedial representative is simultaneously the subject of set of the legal relations regulated by various branches of law (both remedial, and material) and connected with realisation of representation functions by it problems of remedial representation cannot root exclusively in remedial branches of law. For this reason and the decision of problems of remedial representation follows z To search on a joint of branches various for the rights, having paid special attention to a parity remedial and neprotsessualnyh, regulating activity of the representative. The centuries-old history of representation in civil procedure shows the purpose of occurrence of remedial representation, comprises basic approaches to definition of a place of the representative by consideration by vessels of civil cases. Therefore the big attention in work is given to history of judicial representation, consecutive development of this institute in the countries with various legal systems. Specificity of a subject has predetermined also a methodological basis of the present dissertational research which have constituted a general scientific dialectic method and separate chastnonauchnye methods: historical, comparative jurisprudence, legallistic, grammatical and logic research. In work the critical analysis of a theoretical material and the published judiciary practice both on an investigated theme, and on a number of adjacent themes also is used. The research urgency is caused by that the Constitutions of the Russian Federation guaranteed by article 48 of the common right on judicial protection and on reception of the qualified legal aid find the reflexion in civil procedure including in the form of possibility to operate in court through the representative. Civil procedure transition to sostjazatelnoj legal proceedings models, the increase in quantity and complication of affairs in vessels of Russia, sharp reduction is active ^-sti vessels at collecting of proofs against legal illiteracy of the majority of the persons addressing for judicial protection, involve necessity of expansion of possibilities for all persons to be presented in court properly.
Property stratification of a society puts in the forefront questions of guarantees at legal aid rendering, including at participation in civil procedure of the representative. All these questions require detailed theoretical study so that results of research could be used the legislator for construction of system of protection of the rights of citizens in vessels. The theme gets special value in connection with working out of the project new 4 GPK in which the problem of protection of the laws of persons addressing for judicial protection, should become main. The purposes and research problems. A work urgency it is necessary involves definition of research objectives - research of history of formation and development of civil remedial representation for revealing of its place in civil procedure, and also prospects of its development taking into account the revealed tendencies, working out of a teoretiko-legal basis of activity of the court agent in process as the independent subject of law. Statement of the specified purposes has predetermined necessity of the decision of following specific targets of research: 1) to track historical development of remedial representation, including in the countries with various systems of process; 2) to give concept of representation and powers of the court agent; 3) to define a place of the representative in modern Russian civil procedure; 4) to designate and prove presence of the various legal relations which subject is the remedial representative; 5) to develop teoretiko-legal model of remedial representation as complex interbranch institute of the right; 6) to compare international legal standards of representation with the Russian legal realities; 7) to define the basic directions of perfection of guarantees of rendering of the qualified legal aid; 8) to formulate offers on change of the operating civil remedial legislation and addition of decisions of Plenum of the Supreme Court of the Russian Federation. The teoretiko-conceptual base of research was constituted by works of such scientists as S.A.Alexey, E.V.Vaskovsky, M.A.Vikut, A.H.Golmsten, A.S.Gordon, R.E.Gukasjan, M.A.Gurvich, V.N.Ivakin, I.M.Ilinsky, A.F.goat, K.I. Commissioners, L.F.Lesnitsky, K.I.Malyshev, E.L.nevzgodina, I.O.neresesov, B.I.Novitsky, I.S.Retersky, JU.K.Osipov, ST. polenina, I.V.Reshetnikova, V.A.Rjazanovsky, V.A.Rjasentsev, E.Salogubova, M.S.Shakarjan, V.M.Sher-stjuk, V.N.ShCheglov KS. JUdelson, T.F.Jablochkov, CENTURIES JArkov. Scientific novelty of work is shown that it is the first complex research of civil remedial representation after 5 Basic change of the Russian civil procedure of the end of 1995. In the dissertation attempt to define the basis of position of the representative in process is undertaken and to open the legal nature of powers of the court agent. On protection the basic conclusions reflecting novelty of carried out research are taken out: 1. The tendency in historical development judicial representation is revealed - it has begun with necessary representation when the subject under objective causes could not be presented in court and developed to free, contractual representation. Tendencies of development of remedial representation allow to draw a conclusion that it gets the increasing distribution and is claimed by civil procedure. 2. The judicial representation is internally non-uniform, in it is inherent lawyer and strjapchesky an element testifying to dualism of judicial representation: on the one hand the representative is a system part on judicial protection of the rights (item 46 of the Constitution of the Russian Federation) and rendering of the qualified legal aid (item 48 of the Constitution of the Russian Federation), and on the other hand it protects the private interest of the concrete person. A combination of the public and private-law has begun consolidates all persons who are carrying out functions of court agents, without dependence from an accessory to legal profession. 3. It is established, that the civil remedial representation organically combines remedial legal relations, legal proceedings and is settled by norms of complex institute of the right. On the basis of this conclusion definition is made. 4. Affirms, that the general partnership and the limited partnership at current legislation close interpretation should be recognised by remedially incapacitated and changes in the legislation, directed on change of such position are offered. 5. Lacks of legal regulation of sphere of remedial representation are revealed and ways for their elimination, in particular, the such are offered As: Absence of regulation of questions of performance on behalf of one person of several representatives - is proved possibility of performance of several representatives under several powers of attorney; Default about possibility of performance of joint executive powers on behalf of the legal person; The illegibility of legal regulation of representation in mandative manufacture - is established, that from close interpretation of a part of 3 articles 125-4 GPK RSFSR the representative has no right to sign the statement for injunction delivery; Absence of an interdiction to represent the person having opposite interests with other person, represented earlier or now, - it is offered to enter an interdiction. 6. The concept of powers of the remedial representative as unities of its rights and duties is proved. Laws of procedure are simultaneously private-legal duties before represented, and also the public duties corresponding to the common right on reception of the qualified legal aid. 7. It is offered to review some "general" and "special" powers of the representative, and also to enter additional restrictions on participation in quality of remedial representatives, in particular, the persons participating in after procedures, for the best protection of interests of the represented. 8. The representation is sistemoobrazujushchim a process element on which position process reference to this or that system in many respects depends. 9. The remedial representative should be carried to the persons participating in business, as it has independent legal interest in process (material, public), expresses the will and is allocated with the certain rights. 10. It is proved, that the remedial representation is complex interbranch institute of the right. Functional, as reguliru - 7 etsja norms material and the law of procedure, and boundary owing to unity of representation in remedial branches of law. 11. International legal, constitutional, financially-legal and remedially-legal preconditions of development of remedial representation to which number, in particular, are carried are allocated: consideration by representation international law as the phenomenon providing equality of all before the law, the right to access to court, special attention of international legal certificates to questions of rendering of free legal aid, and presence of an independent legal trade is a guarantee of appropriate rendering of the qualified legal aid; the right to judicial protection and to reception of the qualified legal aid is guaranteed by articles 46 and 48 Constitutions of the Russian Federation and do not come under to restriction; formation new and development of the traditional branches of law, demanding specialisations and deep legal knowledge; Reduction of activity of court and development of a principle of competitiveness, increase in sphere of action of a principle of optionality, expansion of use of extrajudicial means of ways of the legal conflicts, assuming rendering of the qualified legal aid. 12. Powers of the representative in arbitration courts are limited in bolshej degrees in comparison with powers of the representative in general jurisdiction court. The representation on behalf of the civil claimant or "the defendant is a part obshcheprotsessualnoj systems of representation taking into account specificity of criminal trial. 13. The remedial representation is a part pravozastupnichest-va and concerns sphere of realisation of guarantees at legal aid rendering. Affirms, that the problem of guarantees at legal aid rendering is not a problem only civil procedure and should dare in a complex with problems of the judicial organisation, social security, with tax laws reform. 8 The conclusions formulated and proved in the dissertation expand theoretical judgement of representation in civil legal proceedings, allocate conceptual problems of this institute and can be used in the further scientific working out of this and adjacent problems of civil procedure, and also in normotvorcheskoj activity. The dissertation is prepared on chair of civil procedure of the Ural state legal academy where its reviewing and discussion is spent. Substantive provisions, conclusions and offers are stated by the author in the published works, and also in performance at scientifically-practical conference. Offers on legislation perfection are directed to Inter-parliamentary Assembly of the CIS for use by preparation modelling GPK the CIS.
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A source: Khalatov, Sergey Aleksandrovich. Problems of representation in civil Legal proceedings / thesis. 2002

More on topic INTRODUCTION:

  1. in introduction
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  4. 10.1. Introduction
  5. INTRODUCTION
  6. approbation and introduction of results.
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  10. INTRODUCTION