Transformation of summary procedure in civil and arbitration proceedings into an ordinary procedure

Abstract

The author conducted a detailed analysis of the mechanism of transition from summary procedure to litigation or administrative proceedings in civil and arbitration trials and revealed the features and problems of its legal regulation. The provisions of Chapter 21.1 of the Civil Procedure Code of the Russian Federation and Chapter 29 of the Arbitration Procedure Code of the Russian Federation were studied, and the explanations contained in the Resolution of the Supreme Court Plenum dated April 18, 2017 No. 10 were taken into account. Official statistics were used to track the effectiveness of the use of summary procedure and the institution of transition to a standard procedure for trying cases. With the help of rich empirical material, the problems that arise when solving the question of the transformation of the procedural order are revealed. The methodological basis of this study was made up of general and special methods of scientific research (historical, comparative law, method of dialectical cognition, formal-logical method of interpretation of law and the method of system analysis). The author studies some special rules that regulate the procedural transition from summary to general procedure in trials. For a more in-depth analysis, the grounds for the transition are divided into two groups: mandatory and optional. A not limiting list of mandatory grounds was revealed, it was proposed to supplement it. Optional grounds are critically analyzed. It has been established that the initiator of the transformation of the procedural form can be either the court or the parties. However, the procedural legislation does not provide for the mandatory transition to the general rules for the consideration of the case at the request of the party. Moreover, the procedural transformation of the order of trial cannot be arbitrary, regardless of the party which starts it. The author concludes that the dependence of the decision on the transition from a summary procedure to an ordinary one on the discretion of the court should not be an obstacle for the parties to a trial when they protect their rights. But, the transition to trying the case according to general rules should not worsen the position of the parties. Attention is drawn to several problems involving the third parties in summary procedure, as well as to the decision to accept a counterclaim for joint consideration with the original, the ways to solve them being proposed. The problems of legal regulation identified in the course of the study may serve as a vector for further improving the mechanism for the procedural transformation of summary proceedings into an ordinary procedure. The author declares no conflicts of interests.