Problems of active legitimation and initiative of the Court in declaration of nullity of a juristic act under the draftAmendments to the Russian Civil Code

The RF Civil Code does not mention such kind of remedy as declaration of the juristic act as null and void, does notdefine the circle of plaintiffs in such suits, and does not provide an opportunity to declare the nullity of a juristic act at the court initiative.At the same time the parties of a juristic act or a third party can be interested in elimination of legal uncertainty created by such anact. And this interest needs protection by judicial declaration of nullity of a juristic act. The proposals on this issue, contained in theDraft Amendments to the Russian Federation Civil Code (Draft further on), are not consistent and free from contradictions. 1) Systemicdiscordance between the Draft's rules about juristic acts and general contract provisions is obvious. Such a double regulation is excessiveand contradicts the principle of legislative economy. In addition, this mismatch can produce considerable difficulties in legal practice.2) According to Para 2 Part 3 Art. 166 of the Draft "bringing of a suit for declaration of invalidity of a null and void juristic actregardless of the application of consequences of its invalidity is allowed if the plaintiff has the law protected interest in declaring such ajuristic act as invalid". But the plaintiff's subjective right or law-protected interest is a necessary precondition for satisfaction of anyclaim. However, the proposed rule is not only excessive but, moreover, objectionable because it can cause wrong interpretations. 3) TheDraft's general provisions about contracts are supplemented by Art. 4311 "Invalidity of Contract". However, it is not clear what specificfeature of contract requires the necessity of these special provisions and why they were not included into the general juristic act's provisions.4) According to Para 1 Part 3 Art. 4311 "suit about declaration of nullity of the juristic act … can be brought by any concernedperson on condition that this person will provide the evidences of infringement by this contract of his/her rights or law-protected interests".Besides the lack of terminological unity between this rule and the similar provision of Para 2 Part 3 Art. 166, that will cause a lotof collisions during the application process, this rule ignores universally recognized postulates of civil law and civil procedure: (a) thenecessity of the right or law-protected interest evidences adducing is a general procedural requirement called "burden of evidence"; (b)the proof of the circumstances referred to by the plaintiff is a condition for claim satisfaction, but not a condition of "bringing" of a suit;(c) the conclusion of the contract itself does not violate subjective rights or law-protected interests; and, therefore, the provision of Para1 Part 3 Art. 4311 would be impracticable under a strict formal legal approach, and would exclude even a possibility to bring the suit fordeclaring a juristic act as null and void. De lege ferenda the author offers his own version of relevant rules.

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