Volume III (2016) Issue 4 International Editorial Council Russian Editorial Board Brazil – Professor Teresa WAMBIER Michael ANTONOV (Pontifical Catholic University of São Paulo) (Higher School of Economics) Russia – Professor Dmitry MALESHIN Ksenia BELIKOVA (Lomonosov Moscow State University) (Peoples’ Friendship University of Russia) Elena GLADUN India – Professor (Tyumen State University) Deepankar SHARMA Paul KALINICHENKO (National Law University, Jodhpur) (Kutafin Moscow State Law University) China – Professor Yulin FU Dmitry MALESHIN (Peking University) (Lomonosov Moscow State University) South Africa – Professor Danie van Sergey MAROCHKIN LOGGERENBERG (University of Pretoria) (Tyumen State University) Chief Editor Dmitry MALESHIN Deputy Chief Editor Sergey MAROCHKIN Executive Editor Elena GLADUN Тhe journal's founder is ISSN 2412-2343 (Online) ISSN 2409-9058 (Print) Key title: BRICS law journal (Print) Contacts: [email protected] Abbreviated key title: BRICS law j. (Print) Frequency of Publication: four issues per year Variant title: BRICS LJ All rights reserved. No part of this journal may be Published by reproduced in any means without the prior LLC V. Ем Publishing House, permission of the publisher. The views expressed 92 Lobachevskogo str., Moscow, in this issue are those of the authors and do not Russia, 119454 reflect the views of BRICS LJ Editorial Council. BRICS LAW JOURNAL Volume III (2016) Issue 4 BRICS LAW JOURNAL (BRICS LJ) An independent, professional peer-reviewed academic legal journal. Aims and Scope The BRICS Law Journal is the first peer-reviewed academic legal journal on BRICS cooperation. It is a platform for relevant comparative research and legal development not only in and between the BRICS countries themselves but also between those countries and others. The journal is an open forum for legal scholars and practitioners to reflect on issues that are relevant to the BRICS and internationally significant. Prospective authors who are involved in relevant legal research, legal writing and legal development are, therefore, the main source of potential contributions. The BRICS Law Journal in English and appears four times per year. All articles are subject to professional editing by native English speaking legal scholars. Notes for Contributors Manuscripts must be the result of original research, not published elsewhere. Articles should be prepared and submitted in English. BRICS LJ doesn’t accept translations of original articles prepared not in English. The BRICS LJ welcomes qualified scholars, but also accepts serious works of Ph.D. students and practicing lawyers. Manuscripts should be submitted electronically via the website www.bricslawjour- nal.com. Articles will be subjected to a process of peer review. Contributors will be notified of the results of the initial review process within a period of two months. Citations must conform to the Bluebook: A Uniform System of Citation. BRICS LAW JOURNAL Volume III (2016) Issue 4 TABLE OF CONTENts Special Issue: Civil Justice in the BRICS Countries Dmitry Maleshin (Moscow, Russia) Chief Editor’s Note on Civil Justice in the BRICS Countries......................................... 4 Articles: Teresa Arruda Alvim Wambier (San Paulo, Brazil) Cassio Scarpinella Bueno (San Paulo, Brazil) Civil Justice in Brazil .................................................................................................................. 6 Dmitry Maleshin (Moscow, Russia) Overview of Russian Civil Justice .......................................................................................41 Krishna Agrawal (Jaipur, India) Neha Dixit (Jaipur, India) Civil Justice in India .................................................................................................................71 Yulin Fu (Beijing, China) Xing Meng (Beijing, China) Civil Justice in China ...............................................................................................................94 Danie van Loggerenberg (Pretoria, South Africa) Civil Justice in South Africa ............................................................................................... 125 Book Review Notes: Mariya Riekkinen (Tyumen, Russia) Gennady Chebotarev (Tyumen, Russia) The BRICS Superpower Challenge. Foreign and Security Policy Analysis ............................................................................................. 148 Conference Review Notes: Elena Gladun (Tyumen, Russia) Law, Politics and Economy in the Modern World: Challenges of the XXI Century ......................................................................................... 152 BRICS LAW JOURNAL Volume III (2016) Issue 4 CHIEF EDITOR’S NOTE ON CIVIL JUSTICE IN THE BRICS COUNTRIES DMITRY MALESHIN, Lomonosov Moscow State University (Moscow, Russia) DOI: 10.21684/2412-2343-2016-3-4-4-5 Recommended citation: Dmitry Maleshin, Chief Editor’s Note on Civil Justice in the BRICS Countries, 3(4) BRICS Law Journal 4–5 (2016). The BRICS countries belong to different legal traditions. Brazil,R ussia and China have civil law features as the fundamentals of their legal systems. India and South Africa, on the other hand, historically have common law legal systems. At the same time, the civil procedural history in each of these countries has some similar features and tendencies. There are common challenges. The most important is that the dynamics of civil procedural law is similar in the BRICS countries. None of the BRICS countries has a pure civil or common law system. All of them have some mixed elements. Brazilian civil procedure shows the strong influence of US legislation. The best example is the Brazilian legislation on class actions that made Brazil one of the pioneers in this area in the civil law world. The Chinese legislator has also adopted some common law features. South Africa still has a strong connection with Dutch legislation. All of the BRICS countries share the reception of aspects of civil procedural legislation from Western countries. The nineteenth century was the most important period for them, because during that time they passed legislation introducing their first civil procedural codes. For example, the Russian Civil Procedure Code of 1864 was the result of the adoption of French, German and Italian legislation of that time. It was one of the best civil procedural codes in Europe then, but within twenty years of its adoption it became ineffective in Russia. During the twentieth century, legislators of the future BRICS countries attempted to introduce their own approach to civil procedure. The best example is the Soviet style of civil procedure in Russia. Mauro Cappelletti called this approach the “radical solution” of inquisitorial civil procedure. In China, legislation was strongly connected with the Soviet style in the DMITRY MALESHIN 5 second half of the twentieth century. Likewise, most of the BRICS countries tried to escape from European or North American sources and attempted to elaborate their own style in the twentieth century. Each of the BRICS countries has a particular legal culture. There is the strong influence of tribal traditions and rules in Brazil andS outh Africa. In China and India, religion occupies an important position in all spheres of life, including civil justice. Russia is situated between the West and the East and has a cultural mix between individualism and collectivism. These cultural specificities influence civil justice. The problem is that formal legislation and actual practice in such societies are discordant. Similar legislation is executed differently in different societies in relation to the national cultural traditions and rules. The main question is, what will the twenty-first century bring for these countries with regard to civil procedure? One of the challenges and opportunities is the cooperation between the BRICS countries. Could be useful? Could common features make for a new type of civil procedure, different from civil law as well as from common law? The authors of this special issue which is devoted to Civil Justice in the BRICS Countries attempt to find answers to these questions and predict the future of RIB CS civil justice. BRICS LAW JOURNAL Volume III (2016) Issue 4 ARTICLES CIVIL JUSTICE IN BRAZIL TERESA ARRUDA ALVIM WAMBIER, Catholic University of São Paulo (São Paulo, Brazil) CASSIO SCARPINELLA BUENO, Catholic University of São Paulo (São Paulo, Brazil) DOI: 10.21684/2412-2343-2016-3-4-6-40 This study deals in a succinct way with the Brazilian model of civil procedural law. There is an historical approach specifically about Portuguese law which was in force in Brazil at the beginning (until 1832), after what there comes a brief description of the judiciary structure (courts and judges) and only then we talk about the scope of civil procedure, its fundamental principles and, in a “law in practice” approach, access to justice. The role of a judge towards deciding “according to statutes and evidence” is analysed and the current importance of case law is deeply focused, mainly according to the new CPC (in force since 2015) and so are appellate proceedings, class actions, enforcement proceedings and ADR. The last items concern the role and the importance of academia, and some interesting cultural observations, where we deal with the very serious crisis, both ethical and economic, that Brazil is living now, in the political sphere. The judiciary branch is now our only hope. Keywords: Brazilian civil procedural law; case law; role of the judiciary; crisis; trust on the