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25JURISPRUDENCE
COERCIVE MEASURES IN THE CIVIL PROCEEDINGS: ITS IMPORTANCE AND TYPES
Davronov D.
Lecturer at the Civil procedural and Economic procedural law department of Tashkent State Law University, Tashkent
ПРИНУДИТЕЛЬНЫЕ МЕРЫ В ГРАЖДАНСКОМ ПРОИЗВОДСТВЕ: ЕГО ЗНАЧЕНИЕ И ВИДЫ
Давронов Д. А.
Преподаватель кафедры Гражданского процессуального и экономического процессуального права
Ташкентского государственного юридического университета, Ташкент
Abstract
This article deals with the concept, necessity, place and importance of coercive measures in civil proceedings, the grounds and procedure for the application of coercive measures, the application of coercive measures in civil proceedings. Problems related to the using of coercive procedural measures in the course of litigation, theoretical and practical issues of coercive procedural measures, analysis of civil procedure legislation of the Republic of Uzbekistan and its norms based on civil law of foreign countries, procedural experience of foreign countries coercive measures, proposals and recommendations on improving procedural coercive measures in civil proceedings.
Аннотация
В статье рассматриваются понятие, необходимость, место и значение принудительных мер в гражданском судопроизводстве, основания и порядок применения принудительных мер, применения принудительных мер в гражданском судопроизводстве. Проблемы, связанные с применением принудительных процессуальных мер в судебном процессе, теоретические и практические вопросы применения принудительных процессуальных мер, анализ гражданского процессуального законодательства Республики Узбекистан и его норм, основанных на гражданском праве зарубежных стран, процессуальный опыт зарубежных стран. меры принуждения, предложения и рекомендации по совершенствованию мер процессуального принуждения в гражданском судопроизводстве.
Keywords: coercive meаsures, court fine, removal from the courtroom, coercion, compulsory attendance, warning, ruling, court protocol, court order
Ключевые слова: меры принуждения, судебный штраф, удаление из зала судебного заседания, принуждение, обязательная явка, предупреждение, определение, судебный протокол, постановление суда
It is known that the main task of civil courts is to protect the personal, political, economic and social rights, freedoms, legitimate interests of citizens, as well as the protection of the rights and interests of enterprises, institutions, organizations, public associations and citizens' self-government bodies. To achieve these goals, the civil courts must consider and resolve civil cases correctly and in a timely manner. This is regulated by the Code of Civil Procedure and laws.
Why are the violated rights of individuals not resolved in civil court in time?
According to Article 3 of the Code of Civil Procedure of the Republic of Uzbekistan (CPC), in order to protect the violated or disputed right or legally protected interest of any interested people, in the manner prescribed by the legislation on civil proceedings have the right to appeal to the court on the case. According to Article 192 of the Criminal Procedure Code, a judge shall decide on the admission, refusal or return of applications from interested parties individually no later than ten days from the date of receipt of the application in court. If the application does not meet the requirements of civil law, the application is returned. In this
case, it will take additional time, and once the shortcomings identified in the application are eliminated, it can be re-applied in the general order.
According to Article 202 of the Criminal Procedure Code, no later than ten days from the date of receipt of the application and the initiation of civil proceedings, the judge shall take measures to prepare civil cases for trial. In exceptional cases, this period may be extended by up to twenty days at the discretion of the judge in the most complex cases. According to Article 207 of the Civil Procedure Code, a civil case must be decided by a court no later than one month from the date of preparation for trial. In addition, in cases where the civil case is too complex or requires additional study, the period of consideration of the case may be extended up to two months, according to a reasoned decision of the judge. In general, it takes two or three months to process and resolve a single civil case, provided that all substantive and procedural procedures are strictly followed. However, it is not a secret that in court practice there are many cases of postponement of civil proceedings due to the absence of the parties in court. This also takes extra time. If the court deems it necessary for the party who did not attend the second
hearing, the court may issue a ruling on the application of coercive procedural measures. This is not a complete solution to the problem. If the address of the defendant who did not appear at the court hearing is unknown, a search may be declared if it is deemed necessary for that person. It is obvious that this situation will lead to a delay in ensuring the rights of those who apply to the court to protect their rights and legitimate interests.
In addition, our civil law warns against violators of the order in court proceedings, in case of mass violation of the order by citizens, or even if the prosecutor, lawyer does not obey the orders of the presiding judge and can not be replaced, the court postpones the case. All of this leads to lengthy procedural time limits in civil proceedings and delays in securing the rights of stakeholders. Therefore, it is necessary to improve the existing procedural coercive measures in our civil law to ensure strict adherence to the rules of procedure, timely and quality trial.
Chapter 14 "Procedural coercive measures" of the new edition of the Code of Civil Procedure of the Republic of Uzbekistan has been introduced. This Code sets out the following procedural coercive measures:
• warning;
• removal from the courtroom;
• judicial fine,
• as well as the imposition of coercive procedural measures on a person, the imposition of an order not to release him from the performance of the relevant obligations established by the Code of Civil Procedure or the court; serves to increase the prestige of the institute. In turn, it saves procedural time and strengthens procedural coercion and discipline in court.
In turn, a number of scientific and theoretical views and debates on the need and essence of this institute continue. In particular, our teacher, a lawyer, Ph.D., Professor Z.N. Esanova divided procedural coercive measures into compulsory measures of a property nature and compulsory measures of a non-property nature and compulsory measures of a compulsory nature. In cases provided for in the Code of Procedure, the introduction of coercion, warning, removal from the courtroom1.
Professor D.Yu. Khabibullayev states that as a coercive measure, judicial fines can be imposed on experts or specialists, for example, if the expert does not appear on the attendance of the court for reasons that the court finds unjustified, the court may impose a fine2. Procedural scholar E.V. Chuklova notes that civil procedural responsibility can be divided into positive and negative forms in terms of meaning3.
While not disproving the views of the above authors, the possible procedural coercive measures serve to strengthen discipline in the trial and in some cases are the basis for disciplinary action against the subjects,
as provided by Article 14 of the Code of Civil Procedure. In case of disobedience, they are warned. If these persons again disobey the orders of the presiding judge, and if it is not possible to replace them with another person without harming the case, the case may be postponed by a court ruling. The court shall simultaneously issue a private ruling, which shall be forwarded to a higher prosecutor or to a qualification commission under the territorial administration of the Chamber of Advocates of the Republic of Uzbekistan.
It should be noted that in our current legislation, procedural coercive measures are regulated only by the Code of Civil Procedure of the Republic of Uzbekistan and are limited to the above coercive measures. As a result of non-compliance with modern requirements and the development of a good system of coercive measures, there are cases when participants in court proceedings do not participate in court proceedings, trials are prolonged and coercive measures do not work.
In the experience of foreign countries, in particular, the system of coercive measures of the German state is effectively organized. According to the German Code of Civil Procedure [4], the following coercive measures are established in civil proceedings:
1. Reimbursement of expenses
2. Administrative fine
3. Compulsory imprisonment
4. Forced production may be ordered
5. Arrest
6. Removal from the court session
In the practice of this state, the costs incurred as a result of the absence of witnesses, experts and specialists from the parties to the court session convened in the prescribed manner, third parties assisting the proceedings, shall be recovered from these persons, he was sentenced to compulsory imprisonment.
A system has been developed for forcing a person to pay a court fine or an administrative fine if he or she is unable to pay it. This ensures the effectiveness of coercive measures.
The system of coercive measures in the AngloSaxon legal system. In the United Kingdom, the Contempt of Court Act was passed in 1981. This act establishes liability for contempt of court. If someone tries to delay or suspend a fair trial and influence the outcome of the trial, he will be held accountable. In the British experience, the following cases are considered disrespectful to the court.
• disobedience or disregard of court decisions;
• taking photographs or shouting in court (disrupting the trial);
• Refuse to answer court questions if you have been called as a witness;
• Public comment on the case, for example, on social media or on the Internet;
1 ZN Esanova. Procedural coercive measures in civil proceedings: (grounds, procedure, innovations in this area). / Newsletter of Legal Sciences. TSU. B.-10
2 D.Yu. Habibullaev. Civil procedural law. Textbook. Team
of authors // Responsible editors: Ph.D., Prof. MM Mamasid-dikov, Ph.D., Prof. D.Yu.Habibullaev.-Tashkent. Lesson press publishing house. 2020. -607. -B. 258.
3 Chuklova EV About and and, signs and measures of civil procedural responsibility // Bulletin of the Samara Humanitarian Academy. "Right" series. - 2008. - №2 p 13
Paragraph 17 of the Contempt of Court Act provides for the imposition of a fine for breach of the court for contempt of court, and failure to pay the fine may result in an additional fine or deprivation of certain rights. The offender could face up to two years in prison, a fine, or both4.
In the experience of foreign countries, it is necessary to emphasize the system of coercive measures in the Scandinavian countries. In the practice of the Finland, coercive measures are divided into three groups: coercive measures against the individual, against property and imposed by a fair court.
It is regulated by the following legal documents:
1. Coercive measure act
2. Police act
3. Aliens act for some foreign citizens5
In Finland, creditors or other plaintiffs in civil or commercial proceedings may take precautionary measures in their favor. The purpose of precautionary measures is to ensure that any decision made on the merits of the case is enforced. The rules for prescribing precautionary measures are set out in Chapter 7 of the Code of Judicial Procedure and in Chapter 8 of the Code of Enforcement6.
Under Finnish law, coercive measures may be applied on the basis of a court decision or without a court order. Law enforcement agencies may apply coercive measures without a court order if they deem it necessary under the Police Act.
The precautionary measures to be taken by the court are clearly defined. They are:
• deprivation of certain rights (prohibiting the defendant to do or enter anything under threat of punishment);
• coercion (ordering the defendant to do something under threat of punishment);
• authorization (empowering the applicant to do something or do something);
• order the transfer of the defendant's property to the agent's custody;
• order other precautionary measures necessary to ensure the applicant's rights.
In the CIS countries, including Russia, Ukraine, Kazakhstan, Turkmenistan, and Kyrgyzstan, the procedural codes, in particular the procedural codes, are mainly used for warning and expulsion from the courtroom. The Code of Civil Procedure of the Russian Federation provides for warnings of offenders in court, removal from the courtroom, fines, criminal charges, referral of materials to the prosecutor, and public hearings7. The Code of Civil Procedure of Ukraine provides for warning, removal from the courtroom, temporary receipt of evidence for judicial examination; The Code of Civil Procedure of Kazakhstan8 provides for coercive measures for contempt of court, compulsory attendance, removal from the courtroom.
The Kyrgyz Code of Civil Procedure provides for fines and warnings for violators of court proceedings, removal from the courtroom, fines, and the prosecution of criminal cases.
Adherence to the procedural discipline established by the Code of Civil Procedure in the process of civil proceedings by the courts will allow for the timely and fair resolution of civil cases. The parties are also obliged for each party to use the rights and obligations of the participants in the proceedings in a fair manner, which will prevent unnecessary time and money in the process and increase the efficiency of the proceedings. Therefore, the proper functioning of the system of procedural coercive measures serves to increase the efficiency of the courts.
Based on the above analysis, it can be said that the first paragraph of Article 144 of the Code of Civil Procedure of the Republic of Uzbekistan reads as follows: Instead, we should add the sentence "If in accordance with Article 313 of this Code, he is obliged to participate in the trial or appear in court in cases provided for by this Code or as deemed necessary by the court." Because in some cases, the court may consider it necessary for a witness, expert or specialist to be present at the hearing. In this case, the Code of Civil Procedure does not provide for coercive measures against these persons, so coercive procedural measures cannot be applied. The application of coercive procedural coercive measures shall be within the exclusive competence of the judge.
REFERENCES:
1. ZN Esanova. Procedural coercive measures in civil proceedings: (grounds, procedure, innovations in this area). / Newsletter of Legal Sciences. TSU. B.-10.
2. Ibratova F., Khabibullaev D., Sh S. COURT ORDERS AND CONTENT REQUIREMENTS: THEORY AND PRACTICE //Norwegian Journal of Development of the International Science. - 2021. - №. 73-2. - С. 20-23.
3. Esanova Z. Priority aspects application of the institute of mediation in resolution of disputes: national and foreign experience //International Journal of Advanced Science and Technology. - 2020. - Т. 29. - №. 5. - С. 1785-1793.
4. Эсанова З. Н., Ёдгоров Х. Б. УПРОЩЕННОЕ СУДОПРОИЗВОДСТВО: СУДЕБНЫЙ ПРИКАЗ В ГРАЖДАНСКОМ ПРОЦЕССЕ (АНАЛИЗ ПО ЗАКОНОДАТЕЛЬСТВУ РЕСПУБЛИКИ УЗБЕКИСТАН) //Polish Journal of Science. - 2021. -№. 42. - С. 52-54
5. Мамараимова Гулрух Правовые проблемы трансграничного наследования интеллектуальной собственности // Review of law sciences. 2020.
4 The Code of Civil Procedure, published on 5 December 2005 (Bundesgesetzblatt (BGBl., Federal Law), p. 3202; 2006, p. 431; 2007, p. 1781), last amended by Article 1 of the Act of 10 October 2013 (Federal Law) Page 3786
5 Coercive Measures Act (30 April 1987/450)
(https://www.imolin.org/doc/amlid/Finland/Finland_Coer-
cive_Measures_Act_1987)
6 1995 Police act of Finland (https://www.polic-inglaw.info/country/finland)
7 Civil procedure code of the Russian Federation of November 14, 2002 no. 138-fz (as amended on 08-12-2020)
8 Civil procedural code of the Republic of Kazakhstan. (Code of the Republic of Kazakhstan dated October 31, 2015 No. 377-V ZRK).
№Спецвыпуск. URL: https://cyberleninka.ru/arti-cle/n/pravovye-problemy-transgranichnogo-nasledo-vaniya-intellektualnoy-sobstvennosti (дата обращения: 27.07.2021).
6. Mamaraimova G. Inheritance issues of non-property (moral) rights of intellectual property // Norwegian Journal of Development of the International Science. 2021. №65-1. URL: https://cyber-leninka.ru/article/n/inheritance-issues-of-non-prop-erty-moral-rights-of-intellectual-property (дата обращения: 27.07.2021).
7. Мамараимова Г. М. Проблемы наследования интеллектуальных прав доменных имен по законодательству Республики Узбекистан //Журнал правовых исследований. - 2020. - Т. 5. - №. 2.
8. Contempt of Court Act 1981(https://www.leg-islation.gov.uk/ukpga/1981/49)
9. Akhrorova S. THE INFLUENCE OF DIGITAL MARKETING IN COMPETITION LAW: OVERVIEW //Herald pedagogiki. Nauka i Praktyka. -2021. - Т. 1. - №. 5.
10. Qobiljon ogli, A. A. (2021). The Concept, Types and Licensing Procedures of Activities that Must Be Licensed in International Investment Law. International Journal of Development and Public Policy, 1(6), 188-193.
11. Aliens Act of Finland (301/2004, amendments up to 973/2007 included)
12. Esenbekova P. et al. LEGAL NEGOTIATION ISSUES: THE IMPORTANCE AND TYPES //Norwegian Journal of Development of the International Science. - 2021. - №. 75-2. - C. 17-20.
13. Code of Judicial Procedure (4/1734; amendments up to 732/2015 included)
14. Civil procedure code of the Russian Federation of November 14, 2002 no. 138-fz (as amended on 08-12-2020)
15. Aminjon, K. "COMPARATIVE ANALYSIS OF CORPORATE BANKRUPTCY IN UZBEKISTAN AND ABROAD." Herald pedagogiki. Nauka i Praktyka 1.5 (2021).
16. Civil procedure code of Ukraine with amendments and additions provided by the law of Ukraine issued on 23rd June, 2005
17. Civil procedural code of the Republic of Kazakhstan. (Code of the Republic of Kazakhstan dated October 31, 2015 No. 377-V ZRK).
18. Code of civil procedure of the Kyrgyz Republic of January 25, 2017 no. 14 (as amended on 11-042020)
LEGAL ISSUES OF ELECTRONIC EVIDENCE IN THE ECONOMIC PROCESS
Esenbekova P.
Senior Lecturer of the South Kazakhstan State University named after M. Auezov, Doctor of Philosophy
Ibratova F.
Associate Professor of the Tashkent State University of Law, Doctor of Law Davronov D.
Teacher of the Tashkent State law university
Abstract
The article deals with the issues of evidence in electronic form in a legal process, such as graphic images, audio, video recordings, information from the Internet. The article analyzes the legal problems that, according to the procedural legislation of the Republic of Uzbekistan, electronic evidence refers to written evidence, between the point of view expressed in the legal doctrine that a lawmaking mistake was made by the legislator. It is proposed to add article 761 Electronic evidence. to the Economic Procedure Code of the Republic of Uzbekistan.
Keywords: electronic evidence, electronic document, emails, digital evidence, legal proceedings, digital signature.
In the current time, more and more often, when considering disputes by economic courts, the parties submit evidence in electronic form9. As the analysis of national legislation shows, to date, procedural legislation does not provide for the concept of electronic evidence, the procedure for its use and related issues10.
However, in judicial practice, graphic images, audio, video recordings, information from the Internet are often used as part of electronic evidence11. The development of digital technologies has made it possible to present a new form of information that is significant, for example, in the form of messages in the Telegramm,
9 Esenbekova, P., Okyulov, O., Esanova, Z., & Ibratova, F.
(2021). APPLIED JURISPRUDENCE. Editorial team, (б0-
3), 5.
10Барышова, М. В., Белый, В. С., Глущенко, В. М., Ибра-това, Ф. Б., Новиков, А. Н., & Пронькин, Н. Н. (2019). Социальное предпринимательство: научные исследования и практика.
11Дудник, Д. В., Ермолаев, К. Н., Ибратова, Ф., Миронов, Л. В., Окюлов, О., Опрышко, Е. Л., ... & Шер, М. Л.
