Pre-trial Procedure for Resolving a Dispute in the System of Protection of Civil Rights

Abstract

The article deals with the problem of the legal nature and place of the pre-trial (claim) procedure for settling a dispute in the system of methods and procedural forms of protection of violated or contested civil rights. Often, pre-trial settlement of a conflict only further complicates and delays the process of protecting a violated or contested right. In addition, the existence of out-of-court conciliation agreements is not a reason for the court to refuse to accept a statement of claim on the same subject and grounds. Consequently, pre-trial (claim) settlement of disputes in any of its forms (mediation, online settlement, etc.) will not be in demand by society until the state provides appropriate guarantees for its results. The ideal solution to the problem would be the normative fixing of the right to receive a writ of execution for out-of-court conciliation agreements, but this path requires fundamental changes in the system of pre-trial settlement: it should be carried out by entities with a higher legal education, the procedure for their activities and organizations should be subject to state control (according to analogy with arbitration courts), and for the results of their activities (the conclusion under their leadership of agreements that violate the law or the rights of other persons), these entities should bear special (rather than general civil law) responsibility. At this stage, it is proposed to fix the notarization of not only mediation agreements, but all out-of-court conciliation agreements. It is also noted that mandatory pre-trial settlement of a dispute today is one of the forms of out-of-court reconciliation, the proper observance of which must be proven when applying to a state court. In order to avoid possible abuses, it would be advisable to notarize the documents confirming the use of the online dispute resolution procedure as well. It is noted that the procedure for pre-trial settlement of the dispute should not be formal, and the obligation to comply with it applies only to the copyright holder (plaintiff).
For citation: Mikhailova E.V. (2022) Pre-trial Procedure for Resolving a Dispute in the System of Protection of Civil Rights. Law. Journal of the Higher School of Economics, vol. 15, no 1, pp. 80–95 (in Russ.). DOI:10.17323/2072-8166.2022.1.80.95.