The doctrine of civil procedure law and its importance for national judicial procedure

Abstract

The article analyses approaches to the understanding legal doctrines that exist in legal science, in order to determine the essence of the civil procedure doctrine, to dissociate it from other related notions and to identify its importance for national judicial procedure. While using this basis, the author gives his definition of “the doctrine of civil procedure law” and gives a classification of legal doctrines. Furthermore, existing cases of the Constitutional Court of the Russian Federation and other courts using civil procedure doctrine in order to motivate their decisions are studied. A conclusion is made that there is no judge’s perception of the doctrine as a source (a form) of law and it is only used as a supplementary argument not having a decisive character and being used along with rules of logic and of common sense. Among considerable factors preventing judges from using the legal doctrine in such a capacity, the author indicates its non-compliance with conditions of legal certainty and legally binding character and the lack of a mechanism for applying doctrinal provisions to civil judicial procedure, as well as the fact that the legal doctrine tends to be dispersed in other sources of law. As a result, the author suggests regarding the doctrine of civil procedure law not as a source (a form) of law, but as a source of legal knowledge providing basis for the emergence of law in a form of legislative act, legal case or other, as a phenomenon being a theoretical and methodological basis of legal system, giving future-oriented models of court organization and civil judicial procedure, legal regulation of legal procedure in courts of general jurisdiction concerning civil cases, a phenomenon having an impact on judges’ and other civil procedure participants’ legal conscience.