Court's Findings Concerning the Fact in Favor of an Opposing Party as a Sanction in Civil Proceedings

Abstract

The paper investigates adverse consequences of unfaithful procedural conduct of a person involved in a case that is likely to influence the outcome of a dispute, including cases when the court justifies its findings through reference to the party's explanations when the opposing party fails to provide an evidence requested by the court or the court considers as proved or refuted the fact for clarification of which a forensic examination had been appointed while the opposing party evaded participation in that examination. It is argued that in such cases the court establishes the facts of the case based on a provisional presumption The author insists that, in this case, the determination of a fact on the basis of a presumption is a measure of protection (sanction) applied by the Court when the party fails to participate in the examination or retention of evidence, which complies with the purposes civil proceedings In turn, the provisions of Para 3.1 of Article 70 of the RF Code of the Administrative Procedure that exempt the party from proving the circumstances directly unchallenged by the other party based on a fiction recognizing such circumstances The author upholds the approach under which passive procedural conduct of the party is not unfaithful Thus, the general rule concerning the burden of proof should not be repealed and sanctions should not be imposed.