Legal Status of a Representative in Civil Process: Theoretical and Practical Aspects

Abstract

The article examines theoretical and practical issues related to the legal status of a representative in the civil law process at the present stage. To resolve problematic issues arising in judicial practice when considering civil cases with the participation of a representative, it is necessary to refer to the theory of procedural legal science. The issues of judicial representation were the subjects of academic research even in pre-revolutionary Russia and in the Soviet legal doctrine. However, until now, the place of the representative in the system of subjects of civil and arbitration proceedings has not been determined. The author has proved that the representative’s lack of personal interest in the case, and the absolute dependence of his procedural powers on the will of the principal, determine that he has no independent procedural status and the right to express his own opinion on all issues considered by the court. The concept of a “procedural plaintiff” developed by procedural science does not correspond to the legal nature of a legal representative, as a result of which a representative cannot be called a person participating in the case “in a procedural sense” (following the example of a prosecutor). Accordingly, the court, when considering a case with the participation of a representative, should always strive to find out the legal position of the principal himself— that is, the person participating in the case — and it is on it to base its conclusions. The court has the right to ask questions to the person participating in the case directly, but this person has the corresponding right to delegate the authority to give a reasoned answer to the question to his representative. Deprivation of this right and coercion to answer a question in person may mean deprivation of the right to judicial protection. The issue of compliance of the requirement for a representative of higher legal education with the legal positions of the Constitutional Court of the Russian Federation was also considered. The initiative to establish state legal bureaus was supported. It was proposed to implement into the current procedural legislation the provision, enshrined in the Code of Civil Procedure of the Russian Federation in 1964, that the court independently decides on admitting a representative who does not have the status of a lawyer or an individual entrepreneur in the process, as well as that the services provided for judicial representation by these individuals should not be systematic and should be carried out free of charge.