Maxima jura novit curia and the non liquet prohibition: Problems of understanding and application in civil proceedings

Abstract

The article analyzes the traditional understanding in Russian civil procedure of the content of the maxim jura novit curia and the prohibition of non liquet, as well as their manifestation in contemporary Russian civil process. It is argued that the maxim jura novit curia and the prohibition of non liquet are in effect, manifesting in the court’s duty to apply the analogy of the law or the analogy of the right and resolve the issue before the court on its merits, even in the absence of norms directly regulating the disputed legal relationship. The competitive advantage of the Russian judicial process is identified, which lies in the ability to use the institutions of the analogy of the law and the analogy of the right to fill the absence of norms not only of substantive but also procedural law. The evolution of civil procedural legislation norms regarding the indexation of awarded sums and the influence of the Constitutional Court of the Russian Federation’s acts on this evolution are analyzed. The causes of errors in the understanding and application of the maxim jura novit curia and the prohibition of non liquet, made
by ordinary courts when considering applications for the indexation of awarded sums, leading to the repeated necessity to invoke the mechanism of constitutional justice, are identified. It is concluded that the court has no right to refuse to satisfy a claim solely on the grounds of the absence of appropriate legal regulation, uncertainty, or gaps in the applicable law, and that avoiding the application of analogy when it is necessary to resolve the issue before the court should be regarded as a violation of substantive or procedural law norms. The article proposes the direct enshrinement of the status of acts of the Constitutional Court of the Russian Federation as sources (forms) of law and a detailed definition of the procedure for their application by ordinary courts in the text of the procedural law.

Keywords:

civil procedure, arbitration process, civil process, jura novit curia, non liquet, purpose of justice, duty of the court, indexation of the amounts awarded