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Section 5. European law
https://doi.org/10.29013/EJLPS-20-1-23-26
Vede Iuliia Vladimirovna, postgraduate student of Ural State Law University Russia, Yekaterinburg postgraduate student of Martin-Luther University Halle-Wittenberg, Halle, Germany E-mail: veda281094@mail.ru
TORPEDOKLAGE AS A KIND OF ABUSE OF THE PROCEDURAL RIGTS
Abstract. The work is devoted to the problem of the abuse of the procedural rights. The author considers one kind of the abuse of the procedural rights- Torpedoklage in the article. The notion and the characteristics of this legal phenomenon are given. The author analyses the impact of the given abuse of the procedural rights due to the common term of the case examination.
Keywords: arbitrability of the dispute, Torpedoklage, abuse of the procedural rights, delaying of the case examination.
The problem of abuse of procedural rights in court disputes is widely discussed not only in the context of national law, but also in the framework of international law, including the consideration of cross-border disputes. In the current legal situation on the territory of the European Union, one of the key problems is the long-term consideration of disputes by the courts, which is a consequence of only one of the parties to the legal phenomenon under consideration. The high level of judicial burden as well as the territorial remoteness of the disputing parties, their belonging to different legal systems, and a huge array oflegislative acts, creates additional difficulties in the implementation of the rights and freedoms provided for by current legislation at the international level and the implementation of the principle of effective justice.
In accordance with the provisions of article 6 of the Convention for the protection of human rights
and fundamental freedoms signed in Rome 4.11.1950 G., article 47 of the Charter of fundamental rights of the European Union, adopted in nice 07.12.2000 each person in the determination of his civil rights has the right to a fair and public hearing by an independent and impartial Tribunal established by law, within a reasonable time [1, 302; 2, 31].
At the international level, attempts have already been made to include provisions on the prohibition of abuse of procedural rights in the text of an international act [3, 10], but due to the lack of a clear understanding of the construction of abuse of procedural rights, this attempt has not been successful, despite the fairly well-developed legal structure, both at the regulatory level and in doctrine, of the prohibition of abuse of rights in substantive law.
Because of globalization and the expansion of international relations between subjects of economic activities, and also in connection with some legal
uncertainty, generating opportunities for abuse of rights in order to achieve goals of a particular subject of legal relations, which inevitably leads to imbalance the rights of the parties, the analysis and study of procedural abuses, and mechanisms to counter this negative legal phenomenon are undoubtedly relevant for modern legal science.
Law, as a valid, positive law, as a system of legal norms sanctioned and protected by the state, has a certain spiritual ideal basis in the form of a set ofval-ues embodied in it [4, 53].
In the General axiological aspect, which should be seen in every legal phenomenon, the concept of abuse of procedural rights is inextricably linked with such values as honesty, justice, integrity, trust [5, 112]. These values in procedural law form the basis of judicial proceedings, which is confirmed both in scientific texts and in procedural law. The essence of these ideas is well reflected in the concepts of "correct and timely consideration and resolution of civil cases" and "fair trial".
Creating such a structure of abuse of rights in procedural law that is both precise and specific, and at the same time the most general, without generating excessive casuistry, is a complex and contradictory process, in view of the complexity ofvarious forms of behavior during the trial, which can be attributed to the manifestations of abuse of procedural rights.
The general idea ofvarious conceptual models is that abuse of procedural rights refers to behavior that damages the above values, and is characterized as: 'unfair actions', 'violation of procedural rules', 'fundamentally unfair behavior' [6, 8].
The problem of abuse of rights in civil procedure is common not only in the legal validity of Russia but in the majority of the world's rule of law. The study of foreign legislation, doctrine and legal experience is a way of creating a resistance mechanism ofvarious types ofabuse of the procedural rights in national law.
Nemytina M. reasonably mentions: 'For more than 70 years we had been leaving in confined legal space and sincerely believed in soviet law being the
best in the world. As a result-we are not acquainted with other legal systems and comparative jurisprudence. We relinquished the national experienced that has been accumulated for centuries during political and law institutes evolution. So the law tradition was interrupted. In conditions of one ideology supremacy we forgot how to use different approaches of science in conditions of multiple ideologies' [7, 188; 2, 9]. In accordance with above-stated, foreign countries experience study is a crucial and popular direction in modern law science.
In the period of acceptance the German code of civil procedure (1877) the problem of attribution of national and foreign courts competence was not significant. Consequently, the legislator did not attach the importance of the issue. The problem became valid only in the XX century in accordance with qualitative leap in the international trade relations development and migration [8, 143].
Despite the fact that there is a big quantity of decisions by court of higher jurisdiction and the Court ofJustice of the European Union about competence of court, the jurisdiction questions and abuse of procedure rights during competent court and general litigation strategy identification questions are relevant nowadays. The relevance is related with growth of international, especially economic relations.
Torpedoklage is one of the most frequent types of abuse of procedural rights in European civil procedure [9, 2]. It is based on a claim directed in the foreign state court by a debtor have known that a creditor has reasons to create a claim against the debtor that will be accepted. The debtor claim to recognize the obligation breached by the debtor, invalid, delays litigation process. As foreign state court is not competent to consider such a claim, the debtor prolongs the legal dispute through artificial conditions creation when the dispute is triable in the foreign state.
Applying such a Torpedoklage to an incompetent court of a foreign state creates an obstacle to the creator legal claim to compel the debtor to perform the obligation in a competent court in accordance
with the current law for several years. As a result, such action of the debtor has a significant impact on the actual outcome of the case, which often makes it impossible to further execute the court decision.
In any case, this example is an expression of abuse of procedural rights by creating a situation in which the case becomes a subject to the jurisdiction of a foreign court. Thus, the rules of jurisdiction become artificially changed or created, and the jurisdiction of the case to a particular court is purposefully substantiated by deliberately creating conditions under which the case can be referred to the competence of the chosen court [10, 112].
The term Torpedoklage is not included in any state legislation [11, 208]. Notwithstanding the absence of term fixation in legislation, it is widely used in procedural literature due to various court practice existence. De facto, this is a kind of" blocking claim", which is widely used in European judicial practice. For the first time this term was used and described in detail by the Italian lawyer Mario Fran-zosi [12, 382]. When formulating this term, it draws a parallel between torpedoing ships and blocking the judicial process. The purpose of filing such a claim is to gain the maximum amount of time or to suspend the process for as long as possible, in order to create conditions for the impossibility of actual execution of the court's decision after its entry into force, or for the loss of the creditor's interest in its execution.
Torpedoklage must be distinguished from other types of abuse of procedural rights. Adverse consequences for the creditor are that when the debtor applies to Torpedoklage, the competent court cannot consider the Creditor's claim to compel the debtor to perform the obligation in view of the need to prevent parallel legal proceedings and the issuance of incompatible decisions by two or more courts at the same time, which are essentially mutually exclusive. Other possible cases of abuse of procedural rights in civil proceedings, in particular cases of claims filed by forum shopping, are not considered this type of abuse of procedural rights and are not considered in this article.
Summarizing, we note that claims for recognition of rights (including negative claims) are familiar to science since the time of ancient Rome. Meanwhile, in the light of the development of international relations and the search by participants of legal relations, especially economic ones, for ways to achieve the most favorable consequences in the event of conflict situations, forms of abuse are also developing, including through the adaptation of long-known procedural institutions in accordance with the needs of participants in economic turnover. In view of the above, we believe that the analysis of the legal experience of European countries in the field of countering procedural abuse, including Torpedoklage, will allow us to reach a new level in the fight against procedural abuse of parties in modern civil proceedings.
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