On the problem of the legal nature of a compensation procedure

The author starts her research of the issue of the legal nature of a compensation procedure and its place in the system of civil procedure with the study of the notion "the right to compensation". Having analyzed current Russian legislation, she provides the definition of the above right as one of the institutions of civil procedural law and a subjective right. Since the realization of a subjective right is possible only in court, the right to compensation consists of two elements: 1) the right to claim for compensation (a procedural component); 2) the right to the compensation award according to the court judgement (a material legal component). Each of the components of the subjective right has its prerequisites and conditions for its realization. The author of the article determines the status of a plaintiff and a defendant in compensation cases and states the basis for disputes in such cases- either the subjective right to a trial or the execution of a judicial act in a reasonable time. Thus, she excludes the possibility of referring a compensation procedure to the category of special procedures. The conclusion that the state ex parte its corresponding bodies has voluntarily obliged itself to create due conditions for the trial and execution of a judicial act in a reasonable time is made on the analysis of Article 6.1, Part1 of the Civil Procedural Code of the Russian Federation and the provisions of Article 17, Part 1, Article18, Article 45, Article 46, Part1 of the Constitution of the Russian Federation. The adoption of the Federal law № 68-ФЗ confirms the obligation of the state to pay a pecuniary compensation for the violation of the right to a trial or the right to the execution of a judicial act in a reasonable time. Consequently, the state guarantees the right to a trial and execution of a judicial act in a reasonable time and does not force a citizen or an organization to perform their legal duties and does not impede the realization of these duties. However, the state in this case is not a bearer of authoritative powers in relation to a citizen or an organization. This means that the interrelationship of the above subjects is constructed not in a vertical but in a horizontal direction. Thus, legal relations with a horizontal structure of their participants' legal connections constitute the subject of a compensation procedure. This procedure cannot be used cases arising out of public legal relations. A compensation procedure has the characteristics of an adversary trial (a dispute on the subjective right between the subjects of horizontal legal relations). The author gives the notion of a compensation procedure and proposes to alter Chapter 22.1 of the Civil Procedural Code of the Russian Federation.

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