The Legal Nature of Pre-Trial Settlement of a Dispute, or One More Controversial Issue of The Theory of Civil Procedure

Abstract

Compliance with the pre-trial procedure envisaged for the settlement of the dispute has traditionally been considered in the procedural literature as one of specific preconditions for the right to sue. However, after the Civil Procedural Code of the RF was adopted in 2002, it is considered by many scholars specialising in procedural issues as one of the conditions that constitute the procedure of bringing an action. The prerequisite of this was the distinction in the aforementioned Code drawn between the refusal to accept a claim and return of a claim as two types of judge's refusal to accept a claim. As the first ground to return the claim includes failure to comply with the pretrial procedure applied for the settlement of the dispute, the compliance with the procedure was associated with the right to sue. However, the paper focuses on the fact that the definition of the judge's refusal to accept the case for consideration in the CPC of the RF 2002 is associated not with the law-maker's views concerning the legal nature of the circumstances that served as grounds for refusing to accept the case and returning it, but with an intent to improve the legislation aimed at facilitating the procedure of determining the cases where, after a judge's refusal to accept an action, it is either impossible or possible to bring the same claim before the court.