Civil and criminal procedural approaches to the definition of individual judicial regulation

Kripinevich Svetlana Sergeevna PhD in Law Deputy Head of the Department of Criminal Procedure Law named after N.V. Radutnaya, Russian State University of Justice, Moscow 117418, Russia, g. Moscow, ul. Novocheremushkinskaya, 69 s.kripinevich@yandex.ru Other publications by this author

The category of individual judicial regulation in modern legal science is increasingly used for monographic, fundamental and applied research. The origins of this scientific discussion were laid in the middle of the last century, when the position on the existence of the so-called subnormal individual regulation was substantiated in the theory of law ^[1]. Other scientists also supported this idea ^[2].

The idea of individual legal regulation reached a new theoretical level after the research and publication of its results by V.V. Ershov ^[3], as well as in connection with the preparation of a monographic (dissertation) work by S.G. Krasnoyaruzhsky ^[4].

It should be noted that the idea of individual legal regulation is actively discussed in foreign legal science. Thus, L.J. Morandier pointed out the need to distinguish between a general legal position, established in advance by objective law, and a special legal position determined by the individual himself in a specific legal situation ^[5].

In the future, the idea of individual legal regulation was developed by V.M. Gorshenev, who argued that the general regulatory regulation is supplemented by individual (non-normative) regulation ^{[1, p.391]}. At the same time, individual regulation was associated with contracts, which were considered as individual acts performing a regulatory function.

A.D. Koretsky writes about the regulatory (sub-normative) function of contracts. In his opinion, the contract differs from other social regulators in a special form of expression of will – an agreement, the subjective feasibility of the contract and the intention (will) of the parties to voluntarily fulfill it ^[6], which allows the scientist to evaluate the contract as an act of individual regulation ^[7]. A.A. Baturina partly adheres to the same position ^[8].

V.V. Gruzdev substantiates the autonomy of individual legal regulation as its essential characteristic, opposing the law enforcement (subordination, authority) regulation of public relations. Autonomous regulation is considered as a type of individual civil law regulation, which is observed in cases of ordering by subjects of their own behavior on the basis of private autonomy. V.V. Gruzdev believes that individual self-regulation should also include an ordering legal effect associated with the implementation of subjective rights and obligations ^{[9, pp. 7-8, 15, 35]}.

V.V. Yershov differentiates individual legal regulation, in connection with the peculiarities of its implementing entities, into: 1) self–regulation; 2) contractual regulation; 3) mediation regulation; 4) regulation of bodies authorized to make compulsory decisions (in particular, courts - individual judicial regulation) ^[10]. V.V. Kulakov agrees with the position that the court carries out individual legal regulation ^[11].

The above, as well as other opinions expressed in legal science, convincingly prove several circumstances:

1) individual legal regulation occupies a strong position in the doctrine and acquires large-scale development in a variety of industries;

2) the ongoing research of individual legal regulation mainly affects the theoretical and civilistic sectors of legal knowledge;

3) the criminal procedural aspect of individual legal regulation currently appears to be a new scientific direction and requires its fundamental study.

For the formation of initial positions and the construction of their own reasoning, the formation of conclusions, we note several significant factors:

1) the presence of theoretically justified signs of individual legal regulation;

2) differentiation of individual legal regulation on the basis of the subject implementing it and the allocation of individual judicial regulation, which entails the need to consider individual judicial regulation in criminal proceedings as a derivative category;

3) active scientific development of signs of individual judicial regulation in the civil sphere and an objective need to study the results obtained in order to determine their possible use for scientific research of this category in criminal proceedings;

4) specific features and differences of criminal proceedings from other types of legal proceedings, which naturally leads to differences in the manifestation and forms of expression of individual judicial regulation.

Regarding the signs of individual legal regulation, we note the position of V.P. Reutov, who points out the existence in legal science of two main approaches to understanding individual legal regulation: 1) broad, covering all types of lawful behavior related to the settlement of specific situations individually and complementing regulatory legal regulation; 2) narrow, binding individual legal regulation with a certain degree of free discretion, acting independently, even if it is provided for in the relevant norm only in a general form ^[12].

Both parts of V.P. Reutov's statement are of scientific interest. With regard to the first, we note that for the sphere of criminal proceedings it is impossible to single out any additions to the regulatory regulation of criminal procedural relations, since its system has a "strong" binding exclusively to legislative provisions, and the only legal sources are the Constitution of the Russian Federation and the Criminal Procedure Code of the Russian Federation (hereinafter referred to as the CPC of the Russian Federation), although the question of the sources of criminal procedure law is debatable ^[13].

Now we will express our opinion on the second part of the above opinion of V.P. Reutov. Here, I think, there is an opportunity to identify signs of individual judicial regulation. This is evidenced, in particular, by the fact that the court in criminal proceedings has the right to discretion (for example, Articles 256, 280, 317.7 of the Code of Criminal Procedure of the Russian Federation) and applies it within the limits established by law. As for independence, the Code of Criminal Procedure of the Russian Federation does not use this definition in relation to the status of the court. However, at the level of the criminal procedural concept, scientists consider independence on a par with its independence and position it as an obligatory element of the procedural provision of the court ^[14].

We assess this statement of the question of independence as correct. Therefore, in our opinion, the independence of the court is present in criminal proceedings and should be taken into account when considering the entire spectrum of its procedural status, including the implementation of individual judicial regulation.

Legal regulation recognizes the impact on public relations carried out with the help of the norms of positive law and other legal means in order to streamline them ^[15]. In this part, the definition still needs a little clarification: regulation really regulates public relations. At the same time, the essence of ordering is the development and establishment of certain rules to which the subjects of these relations must obey. Accordingly, individual judicial regulation in the field of criminal proceedings is expressed in the fact that the court determines the rules of further legal relations between its participants.

In this regard, several circumstances draw attention to themselves.

The court, defining the rules of relations between specific participants in criminal proceedings, fixes them in a special act. This judicial act should be considered as the result of individual judicial regulation, which, as a rule, is expressed in the form of a decision. However, the court decision does not exhaust the entire form of implementation of individual judicial regulation. And in relation to this aspect, there is no unity in legal science.

The court determines the rules themselves for regulating public relations within the framework of a specially established procedure (for example, the resolution, production and announcement of the verdict – Articles 296, 301, 303, etc. Code of Criminal Procedure of the Russian Federation). The content of these rules is also in the legal plane. However, their choice, if there are alternatives allowed by law, can be very wide. But the possibility of using discretion by the court is not always expressed in the law. Instead of the category "discretion", the legislator often uses other lexical constructions. Thus, in Part 2 of Article 309 of the Code of Criminal Procedure of the Russian Federation, the legislator indicates that the court may recognize the civil plaintiff's right to satisfy a civil claim and transfer the issue of the amount of compensation for a civil claim for consideration in civil proceedings. In our opinion, this approach needs to be adjusted at the level of the criminal procedure law by recognizing and literally consolidating the power of the court to act at its own discretion in the manner and within the limits provided for by the Code of Criminal Procedure of the Russian Federation. We propose to provide for the corresponding norm in the text of the Code of Criminal Procedure of the Russian Federation by supplementing Article 29 with a new part 2.1.

The experience of civil individual regulation associated with the use of contractual principles inherent in civil law and procedure is of very significant importance for discussing the problems of individual judicial regulation in criminal proceedings. It is fair to recognize the point of view that "individual regulation, based on freedom of discretion and expressing the very essence of civil law regulation, is put at the forefront" ^{[9, p. 33]}.

The fact that the contractual principle is becoming widespread in criminal proceedings is evidenced by both legislative provisions (for example, the expansion of the scope of pre-trial agreements, the introduction of a shortened inquiry, etc.) and numerous scientific papers emphasizing this trend in modern criminal proceedings ^{[16, 17]}. This process directly affects the topic of individual judicial regulation, and in pre-trial and judicial proceedings. Accordingly, the conceptual apparatus developed in civil science, the main features of the category of individual judicial regulation, its role in fulfilling the mission of the court and approaches to its legislative regulation of the procedural competence of the court, are of great value for criminal procedural science.

In this part, we consider it necessary to note the positive significance of such important features introduced into the field of individual judicial regulation as will, agreement, autonomy, self-regulation, which acquire relevance for criminal proceedings in the situations noted above. Moreover, this set of concepts becomes significant not only for the authorities, which include the court, but also for individuals involved as victims, witnesses, civil plaintiffs, as well as for the suspect and the accused. Their will, ability to reach an agreement, relative autonomy, are subject to consideration by the court when determining individual rules for regulating relations between them, as well as between participants in criminal proceedings and the state represented by authorized bodies and officials.

These circumstances allow us to assert that the criminal procedural approach to the definition of individual judicial regulation, its procedural aspects, including forms of implementation, results, legal consequences, can and should take into account the available results of civil studies.

Summing up, we will formulate the main conclusions.

1. In the theory of law, the category of individual judicial regulation has been developed and substantiated, which is one of the elements of a more general concept – individual legal regulation, the main properties of which are: derivative (from normative) nature, implementation by a specially authorized entity – the court, which gives special specificity to the implementation process, including the form, performs a regulatory function based on accounting a wider range of the will of the participants in the proceedings.

2. Civil scientists have been particularly active in the development of individual legal regulation and its type – judicial regulation, due to the scale of the principle of dispositivity in the regulation of relevant legal relations, the significant spread of discretion and consideration of the will of the parties.

3. The study of individual judicial regulation in the field of criminal procedure law is at the initial stage. At the same time, a number of trends widely demonstrated by criminal proceedings indicate the demand for relevant developments (the development of agreements, procedural contracts, the "inclusion" of the court in criminal procedure contracts, the development of court discretion, etc.).

4. As the conducted research has shown, certain elements of knowledge about individual judicial regulation obtained in the field of civil law can be in demand for the formation of a complex of knowledge in the science of criminal procedure and for creating a model of the corresponding segment of judicial criminal procedural activity. This applies, in particular, to the conceptual apparatus (with its adaptation to the peculiarities of criminal proceedings), the development of procedural categories (including their legislative consolidation, procedural forms of implementation in the field of criminal proceedings) "will", "agreement", "procedural autonomy" (a concept that is not identical with the independence of the court or procedural independence investigator), "self-regulation", which acquire relevance for criminal proceedings in the field of individual judicial regulation.