The history of risk development in the civil process (from ancient Rus to the Soviet period)

Currently, proceduralists are showing a growing interest in complex and multifaceted concepts, one of which is the category of "risk." However, the lack of due attention to its historical development prevents a full assessment of this category. This circumstance influences the choice of the subject and method of research. The subject of this article is to identify the essence of the category of "risk" in civil procedure, as well as to analyze its reflection and application in the history of Russian legislation with the principle of optionality. To reveal the subject of the study, the author refers to the opinions of ancient philosophers, according to which the approach to risk can be expressed both subjectively (awareness of future consequences and the ability to influence circumstances before they occur) and objectively (the occurrence of consequences regardless of the will of the person). The research method is a comprehensive historical and legal analysis, covering the period of legislative provisions from the Russian Pravda to the norms of Soviet codes, since the development of the doctrine of risk, in particular its historical aspect, forms the basis of this study. The value of this study lies in clarifying the relationship between the category under study and the principle of optionality. The importance of consolidating this conclusion is necessary to explain the reasons for the courts' application of this category when shifting risk to one of the parties in both adversarial and inquisitorial proceedings. Consequently, the significance of confirming this conclusion is aimed at studying the emergence of risk factors and the expected negative consequences of this category in the history of legal proceedings. In the course of this study, the author concludes that the process of legislative improvement has contributed to a shift in the primary approach to risk from an objective to a subjective one. This is reflected in the fact that, during the period of Old Russian legislation, means of proof (trials by fire, water, and the "field" competition) influenced the occurrence of the corresponding result. However, subsequent legislative statutes partially or fully reflected the impact of the subjective approach on risk. The subjective approach is reflected in norms devoted to concluding a settlement agreement, bad faith behavior of a party when filing a claim or during court proceedings, judicial notice, and other matters over which a person could influence. By determining that subjective risk could exist in both investigative and adversarial proceedings, the author confirms the conclusion that the category of “risk” is associated with the principle of discretion, according to which a person could influence the occurrence of the desired result for him.

procedural risk, history of risk, subjective risk, objective risk, old Russian legislation, legislation of the Middle Ages, Charter of Civil Procedure, Soviet legislation, risk enforcement, principle of dispositiveness