Phenomenon of formalism in civil procedure

Abstract

The article analyzes the existing in the scientific literature point of view on the essence of the procedural formalism and justifies that it should not be identified with the civil procedural form. It acts as a consequence of its existence and is always manifested in the activity of translating the established rules of behavior into practice. In contrast to the civil procedural form, which by its nature is a static phenomenon, procedural formalism is characterized by dynamism and acts as a qualifying sign of the behavior of a particular subject. At the same time, the fact of the obligatory observance of civil procedural form does not turn it into an independent principle of civil proceedings, since this requirement is a necessary condition for ensuring the right to a fair trial and, accordingly, is included in the content of the rule of law principle. The author, taking into account the position of the ECHR, concludes that procedural formalism should be understood as the requirement of strict compliance with civil procedural law during consideration and resolution of cases, which applies not only to the court, but to all other participants of the trial. It is a prerequisite for the proper administration of justice, because it allows the courts to use discretionary powers clearly stipulated with cases and an appropriate amount, which prevents arbitrariness, ensures predictability of the law and, accordingly, guarantees the right to a fair trial. At the same time, it should not be confused with excessive formalism and legal purism, which in their essence are negative phenomena and lead to a violation of the right to a fair trial. Excessive formalism, unlike procedural formalism, provides for mechanical compliance with the rules of procedural law, regardless of the appropriateness of this. At the same time, legal purism is an extreme manifestation of excessive formalism and always leads to a violation of the principle of legal certainty, since it is associated with abolition of the correct and final courts decision, without of a social need or the need to eliminate the fundamental error, or questioned the circumstances established by the final courts decision, which can be equated to its repeal.

Keywords

• procedural formalism
• civil procedural form
• the right to a fair trial
• excessive formalism
• legal purism