CONCEPT

Unified Civil Procedure Code

RUSSIAN FEDERATION

INTRODUCTION

150 years ago by Emperor Alexander II, the reform of the entire legal system of Russia was launched. It is more often called judicial reform, since considerable attention was paid to the basic principles of legal proceedings. In this regard, the preparation and discussion of the draft concept of "single" civil procedural code look quite symbolic.

Dynamic development russian society And the domestic economy does not allow the legislators to rest on the laurels. The grandiose work on the adoption of large-scale amendments to the Civil Code is not yet completed. Russian FederationWe started in 2008, as we face no less global task of reconstruction of the entire civil process. So our legal community will definitely not remain without work in the near future, and the work is relevant and extremely necessary. Someone who, and we have no need to "suck out from the finger" legislative initiatives, sometimes plunging society into a state of deep amazement.

As you know, on February 5, 2014, the basic legislative acts, united the Supreme Court and the Supreme Arbitration Court of the Russian Federation.

From August 6, the Supreme Court of the Russian Federation is the only higher judicial authority Russian Federation for civil, criminal, administrative and other cases, as well as on economic disputes, which became a decisive moment in making a decision on the need to unify legal proceedings civil Affairs.

On June 9, 2014, the Committee on Civil, Criminal, Arbitration and Procedural Legislation was created by the Working Party, which united many well-known proceduralists, including those who participated in the creation of Codes 2002 included: Tamara Evgenievna ABOVA, Gennady Alexandrovich Zhilin, Irina Valentinovna Reshetnikova, Valery Abramovich Musin, Vasily Ivanovich Nechaev, Lydia Vladimirovna Tumanova, Elena Vasilyevna Kudryavtseva, Vladimir Vladimirovich Brarka, etc.

The decision was set - December 2014, to which it was necessary to approve the draft concept of the development of civil proceedings and the structure of the draft Civil Procedure Code. In June, the first meeting of the working group took place, at a meeting of which the goals, objectives, the main directions of the concept were considered, as well as the preliminary structure of the new Code. On October 28, 2014, an expanded meeting of the Working Group was held in Yekaterinburg, which gathered procedural officers from the whole country, including members of the State Duma Committee, representatives of the Government of the Russian Federation, the Supreme Court of the Russian Federation and other ships as general jurisdictionand arbitration courts. By this time, the concepts of individual heads of the future Code were prepared. The meeting discussed both conceptual and, if so we can say linguistic questions. As a result, the editorial council prepared the text of the concept, and the Committee of the State Duma in civil, criminal, arbitration and procedural legislation approved it on December 8, 2014.

The main purpose of the development of the concept is to ensure affordable and equitable justice carried out within a reasonable time limit in compliance with the procedural norms by competent and independent judges, guaranteed execution of judicial acts, which is an unconditional condition for the democratic development of the legal state based on the priority of human rights and freedoms.

Improving the effectiveness of Russian proceedings is carried out by the unification of civil and arbitration procedural legislation and the creation of the Concept of the Unified Civil Procedure Code.

In arbitration I. civil Procedure There are many common institutions. However, a significant number of provisions of the Civil Procedure Code of the Russian Federation and the Arbitration Procedure Code of the Russian Federation seriously "compete" with each other. Procedural law should not have differences on relations regulated by one "material" right, since other poses in the unequal position of these relations. The legislator has already done a lot to ensure that the so-called vessels and their "mask show" gone into the past. However, much remains to be done.

Unification procedural legislation The new Code is designed:

1) eliminate contradictions between the existing two branches of procedural law (civil and arbitration process) Taking into account the developed draft code administrative proceedings;

2) establish new rules for resolving controversial legal issues. To protect the interests of persons involved in the case, it is possible to introduce the rule to consider the cases of controversial jurisdiction, as well as the transfer of concluding case within the judicial system;

3) to descend the most successful developments of existing as APK and GIC, spreading them to the entire civil process. For example, the possibility of filing claims (applications) in in electronic format (arbitration process) and judicial order (civil process);

4) strengthen alternative ways to resolve disputes, conciliation procedures;

5) Create existing species simplified production (ordinary, absentee, simplified production);

7) identify the cardinal problems to be solved (the existence of two cassation);

8) implement corrections of the previously identified deficiencies in the regulation of the process, including the existence of an unreasonable terminological difference;

9) to take into account the importance of international obligations of Russia, contracts, activities of international human rights organizations and the practice of international courts.

At the time of developing the concept, the issue of consideration of cases arising from public relations, according to the rules of the new Civil Procedure Code of the Russian Federation, was not fully resolved. In the first reading, on May 21, 2013, a draft code of administrative proceedings was adopted, submitted by the President, providing for the procedure for regulating administrative cases by the courts of general jurisdiction. Given that cases arising from public legal relations, essentially have the same procedural forms of consideration as the part-based, the code of administrative proceedings can become a transitional step to the further unification of all procedural norms, with the exception of the criminal procedure, in a single codified act. But this is a matter of the future ...

The project structure includes seven sections, 59 chapters.

This book proposes structural approaches to the preparation of the draft new GIC prepared by the Editorial Board.

The approval of the Committee does not mean that the concept has become a monolith. On the contrary, this is an interim result, which allows and, if you want, calls for a further discussion of both the concept and in the future of the draft Joint Civil Procedure Code of the Russian Federation.

P.V. Kraschenynikov

Structural approaches to concept

Traditionally codes, including procedural, have a common and special part, which should be saved. In total, the so-called intersectoral procedural institutions, having a single regulation for any type of process (claims, special production and production from public relations) and any stage of the process (first instance, appeal, cassation, manufacturing on newly discovered and new circumstances, supervisory proceedings ). In a special part, the regulation of consideration of cases in various types and stages of the process is traditionally focused, as well as in certain categories of affairs. In accordance with this, the specific features in the regulation of intersectoral general institutions are concentrated in a special part of the Code. Thus, in the general part of the Unified Civil Procedure Code of the Russian Federation, the regulation will be focused on the provisions that are equally applicable to all types and stages of the process (types of evidence, the definition of the subject and obligation to evincible, etc.). In a special part, they will find their regulation of the peculiarities of proving in the species and stages of the process, as well as when considering certain categories of cases.

Speaking of terminological differences, it should be noted that it is preferable to use an indication of the court, regardless of whether it is about the collegial composition of the court or one judge. This conclusion is due to the fact that both three judges and the judge act on behalf of the Court.

As for the use of different items for a generalized understanding of judicial acts or decisions, it should be proceeded here from the laws of logic: if the courts make decisions, definitions and decisions, the generalizing term should not coincide with those listed. Consequently, it is more logical to talk about judicial acts that unite decisions, definitions and decisions.

Adopted cuts:

APK - Arbitration procedural Code Russian Federation;

GPK - Civil Procedure Code of the Russian Federation;

Code (draft code) - the Unified Civil Procedure Code of the Russian Federation, the concept of which is being developed (draft Civil Procedure Code of the Russian Federation);

Concept - the concept of the Unified Civil Procedure Code of the Russian Federation;

The CAS project is a draft code of administrative proceedings of the Russian Federation (project N 246969-6, made by the President of the Russian Federation and adopted State Duma In the first reading on May 21, 2013).

Text concept

Section I. General provisions

Chapter 1. Basic provisions

1.1. The first chapter of the new Code includes the tradition of the situation on the sources of legal regulation of civil procedural relations, the tasks of civil proceedings, the principles of civil proceedings.

The civil process involves consideration and permission not only to civil affairs actually, but also cases arising from public legal relations, which by their nature are administrative affairs. Accordingly, the consideration and resolution of these cases is typical of administrative proceedings, as a kind in this case of civilistical trial. The existing criticism of the current production on these cases carried out according to the rules of the existing GIC, mainly on the part of constitutionalists, is largely based on the thesis, which allegedly conflicts with part 2 of Article 118 of the Constitution of the Russian Federation. At the same time, an external feature is taken - the name of these cases in the Code of Civil, and the procedure for their consideration and permission - as civil proceedings. The ultimate goal of the unification of the norms of procedural law is the development of a single codified act. The inclusion of norms on certain categories of administrative cases into the code of arbitration proceedings, the expediency of which can be determined by law enforcement practice, is one of the steps towards this goal.

The appropriate provisions using an adequate conceptual apparatus must be consolidated in the Code, including its main positions.

When making CAS a common part The new CCP should be distributed on the legal relations regulated by the CAS. At the same time, the CAS should contain a refusal to the CCP of the situation.

1.2. In the main provisions of the Code, the intermediate and final objectives of the proceedings must be formulated for the entire civilistic process. In the proposed version, the structure of Art is taken as the basis. 2 existing GPC. It in the system of current legislative regulation, in contrast to the agro-industrial complex, adequately reflects the objectively existing system relationship between the objectives and goals of the civil law procession and is consistent with Article 18 of the Constitution of the Russian Federation, which enshrines the main constitutional goal of justice.

The proposed version of the norm enshrining the objective objective common for the entire process is consistent with Article 2 of the current Federal Law "On Enforcement Proceedings". Without the execution of judicial acts, the final objectives of the proceedings cannot be achieved, and therefore the need to synchronize the legislative consolidation of the relevant procedural goals is obvious. The proposed option and in the logic of Article 3 of the Federal Constitutional Law "On the Constitutional Court of the Russian Federation", enshrining the final objectives of the constitutional proceedings, taking into account its specifics at the federal level. This must be taken into account, since the nature of the constitutional proceedings is consonant with administrative proceedings (in any case, on the challenge of regulatory legal acts, the protection of electoral rights). It is not by chance that in some countries, the question of the constitutionality of laws and other regulations is permitted by the courts of administrative jurisdiction.

1.3. The main provisions of the Code must consolidate the principles of legal proceedings, reflecting the standards of fairly accepted in the community of democratic states judicial trial, without complying with legal proceedings, it is not entitled to qualify for the role of justice. The draft Code requires the specification of the relevant provisions of the Constitution of the Russian Federation and international legal acts that enshrine generally accepted standards of justice.

In connection with the ambiguous approach of the courts, compliance with the rules established by the Law on the jurisdiction of civil and administrative cases, with the presentation of the principle of the implementation of justice for civil and administrative cases, only by the courts, whose competences are attributed to the law, should be repeated in the formulation of part 1 of article 47 of the Constitution of the Russian Federation. It also seems necessary along with the legality to formulate the principle of justice, to which the Constitutional Court of the Russian Federation persistently call for the proceedings. European Court by human rights.

1.4. In the current GPC, for the name of judicial orders, decisions and definitions of the Court, the Decisions of the Supervisory Court is used by a generalizing term "judicial decrees". It is preferable to use the term "judicial acts listed, the term" judicial acts "to the name of all listed acts of the Court of Court, as is the current APK, the Federal Law" On Enforcement Proceedings "and some other legislative acts.

The members of the Working Group will have to write a concept until December 2014, that is, in about six months.

- Is the term not too big? - the communist Yuri Sinelchikov asked.

Crashinnikov was noticeably surprised. "The term is too small," he is sure.

- I think in two weeks could be written. This is not a code to write, "the communist argued.

"That's how we live» - Prashinnikov responded.

Not too grateful to comment on projects of regulations, and even more so the concept of these projects, since it can very well be that these words will completely impair, and we will see that something completely different will enter into legal force. However, in this particular case, it is necessary for this that can be hoped, because with the concept of a single Code of Civil Procedure of the Russian Federation, everything is bad. Today we will talk about the section I of the Concept, which covers all general procedural institutions: principles, jurisdiction and jurisdiction, participants, evidence, court costs, etc. It is clear that in one or two notes, it is impossible to express all the comments on a considerable one (approximately 64 pages). Therefore, we focus on what is most important.

1. General comments on novels

The need to develop a single Code of Civil Procedure of the Russian Federation is due to the proclamation of the need to unify civil procedure legislation. I suppose, however, that this necessity itself may well be questioned, and in the political sense, a single Code of Civil Proof of the Russian Federation speaks rather a gesture that fixes the association of the Russian Armed Forces and the Russian Federation. If the question of the existence of two codes - APK and GPC was put in abstract, most professionals would probably agree that there is no point in this - all the specifics of the permission of economic disputes may well be reflected in the same code with common order. However, the AIC in one form or another has been valid for 20 years. During this time, judges of arbitration courts mostly mastered this difficult document, accustomed to him. It can hardly recognize that there are such defects that would require its radical reform. Russian politicians, unfortunately, too often admit the same mistake of the King Rex - unstable legislation ("Unstable Legislation").

Most of the concept corresponds to the following scheme: "The GPC said that, and the APC is something very similar, so we will not change anything, we will also write out" or "in the Code of Civil Procedure, there is a completely different We will write both in the GPC / APK or immediately, and so. "

If the purpose of reforming is the unification, then everything is logical. However, in some cases the authors of the concept decide to surprise us with novels - decisions and even whole institutions, which neither in the CCP, nor in the APC. How sensible? The term for developing the concept was given clearly insufficient even for consistent and thoughtful unification. Why under the cover of the creation united GPK trying to "drag" also the novels? Run ahead, none of the novel section of the I is not forced, that is, it is not necessary for the combination of two codes.

2. The principle of justice

One example of such Novel is the "principle of justice", which is proposed to introduce into civil procedural law. Only one paragraph is dedicated to him, which sounds as follows: "It also seems necessary along with the legality to formulate the principle of justice, to which the Constitutional Court of the Russian Federation and the European Court of Human Rights are persistently called upon compliance with the proceedings."

What is it talking about? Apparently, the authors believed that references to the calls of the CS RF and the ECHR sufficient to understand what it was about. In fact, it is not. The CS of the Russian Federation often in its respects refers to the principle of justice, but in all cases that I managed to detect, we are talking about constitutional principle of justice. It is natural that the Constitutional Court, including in its regulations on the Code of Civil Procedure / APK, relies on it, but after all, it is because its function is a constitutional normocontrol, for which the search for the balance between the rights of citizens is carried out. That's where the principle of justice begins to work! It is clear that in this form the principle of justice in the procedural code there is nothing to do if it would be because it is the principle of financial law.

Maybe a link to the ECHR something will clarify? The Convention that ECHR applies, such a thing as the "principle of justice" does not know. Article 6 speaks of the right to a fair trial, but this concept itself is extremely extensive, including the equality of the parties, and the independence of the court, and the rationality of court proceedings, etc. That is, again nothing is understandable.

Obviously, enter the new principle only if: 1) its content independently with respect to other principles and guarantees; 2) he will have a place among them, that is, he will fit into the system; 3) and when it is necessary in this system. The authors, unfortunately, not only did not make it difficult to explain why they believe that the new principle satisfies the terms outlined, but also by simply explanation that they generally mean.

Finally, we note that the principles of the right is the phenomenon of droinal, and they must be formed with science. Moreover, attempts to develop new principles of civil procedural law are known (for example Would expect commenting on those of them that have already been proposed in science. But then there is a general lack of concept - it is obviously prepared for skchche, without any deep analysis of the current legislation and law enforcement problems, and of course without circulation to the doctrine, and often simply with obvious errors. You will learn about one of the explicit errors at the end of the comment to the provisions on the outlaps.

3. Taps

Applications from the discretions are invited to allow the same judge to which the discharge was stated, and the chairman of the court composition (the Vice-Chairman, the Chairman of the Court in cases where they are discharged, respectively, the Chairman of the Composition or Deputy Chairman). The authors explain that this novel is necessary for "providing guarantees of independent and impartial justice." Do we need to understand that all these years in the processes under the Code of Civil Procedure of the Russian Federation, we lived in the absence of such? Is it just now, after the introduction of a single GPK, will we face independent and impartial justice? Unlikely.

The rule that the judge may well consider the application for his discharge, it is based on simple logic - the discovery is not a blow of a pack of papers on judicial pride, but a completely ordinary procedure. No one else cares about the interests of justice, including the "justice looked like" ('Not Only Must Justice Be Done; IT Must Also Be Seen to Be Done') for each case he allowed. All participants in the process should not be doubt that the court is impartial. And to whom, no matter how judge know, did he give any reason to doubt it? According to the experience, I foresee the objection of the species "Our judges do not understand anything, and if they understand, they come called." Agree, however, that if we proceed from a similar background, it is unlikely to write a procedural code.

But back to the discretions. If you look at the current edition of the CCP, there you can see the logic described above. Application on the discretions are resolved by the judges who listen to the case: 1) if the judge is one - he himself; 2) if the board and the discharge is declared to one judge, then the board without this judge; 3) If the board, and the discharge is declared several or all of the whole board.

In the APC, this question is resolved otherwise. On the APC, the taps are mainly permitted by the Chair arbitration Court, Deputy Chairman of the Arbitration Court or Chairman of Faces. Only in cases where the discharge is declared one of the judges of the board, the question is considering the remaining members of the Board. Therefore, the logic of preventing the judge, which is stated by the discharge, to resolve the application for the discharge.

The concept seems to be stopped at the APK version, transferring consideration of the issue of the disgusts of the judges who do not listen to the case. But immediately read: "If the case is considered by the presidium of the court and the discovery was declared to the whole of the presidency, it is considered by the same composition of the court." Concept authors find grounds to trust members of the Presidium and not trust the rest of the judges? .. It would be interesting to listen to how they explain it.

4. Studying

Complete this post with consideration of the provisions on the competence of the courts. It is clear that we expect from the Unified Code first of all the final decision of the subordination issues, which have taken all the practitioners a lot of suffering. The potential for wars between the highest courts for cases is apparently can be considered eliminated, the legislator remains only to put the point.

However, here just there will be absolutely no novel. The delimitation of the competence between the arbitration courts and the courts of general jurisdiction remains completely unchanged, and this, as we remember, means the preservation of two criteria: 1) participants should be legal entities Or individual entrepreneurs, and 2) the dispute must be economic.

We must admit that the highest courts managed to create problems referring to one, and to another criterion. So, even at the recently, Vasu managed to say a new word - it turns out that citizens who are not status individual entrepreneur, anyway can participate in arbitration Affairswhen they act advocates of the founders under the loan agreements concluded with the organizations established by them ( Resolution of the Presidium of the Supreme Arbitration Court of the Russian Federation of November 13, 2012 N 9007/12). However, another old Armed Forces of the Russian Federation quickly restored "Justice" ( Overview judicial practice According to civil cases related to the resolution of disputes on the execution of credit obligations (approved by the Presidium of the Supreme Court of the Russian Federation 05/22/2013)). Echo of war.

I will ask a question, did not follow the authors of the concept to show their desire to introduce novels in matters of competence? Many judges and lawyers practice noted that two criteria are too difficult. And here we must repeat what we taught us in civil proceedings - the rules of the jurisdiction may be anyone (vessels are bad and good), but they should be the most simple, understandable to everyone.

Simplification could be produced by leaving one criterion. Wishing to discuss who exactly.

P.S. Yes, I forgot the interesting point concerning jurisdiction and jurisdiction. The concept is referred to the introduction of the doctrine Estoppel, "limiting objections against unreliable or frequentness of the case by the defendant with the moment of the first statement on the merits." Earlier, I was already asked if there is a procedural Estoppel in the Russian right and, so it remains here to repeat one of the previously announced arguments - procedural Estoppel implies stimulating the consistent behavior of the process participants by prohibiting the benefits of inconsistent behavior. In this regard, it seems that the Estoppel doctrine should be fixed in the law as a principle, and not as a separate next rule. This, in particular, would remove the misunderstanding that the concept only the defendant is limited in his right to refer to the continuity and frequency after the beginning of the hearing of the matter ...

Although it is possible to generally argue about the relevance of reference in this context at the Estoppel doctrine. After all, it is originally about the inadmissibility of the cancellation of the decision because of the unfairness / obviousness of the case, if no one has referred to this, I said the ECHR, and said based on principle legal definition (If you remember there it was about the inadmissibility of "legal purism"), and this is a completely different story.

The reason for the development of the concept was the adoption of the Federal Constitutional Law "On the amendment to the Constitution of the Russian Federation" of February 05, 2014 No. 2-FKZ, in accordance with which, from August 6, the Supreme Court of the Russian Federation is the only senior judicial authority of the Russian Federation for civil, criminal, administrative and other affairs, as well as on economic disputes.

The main purpose of the development of the concept is to ensure affordable and equitable justice carried out within a reasonable time limit in compliance with the procedural norms by competent and independent judges, guaranteed execution of judicial acts, which is an unconditional condition for the democratic development of the legal state based on the priority of human rights and freedoms.

In general, the concept of the Unified Civil Procedure Code of Russia is assessed by us positively, however, we cannot but notice a number of significant, in our opinion, controversial issues and problems. Consider some of them.

1. In paragraph 3.3. Concepts are offered an introduction doctrines estoppel, limiting objections to the unobliness or obviousness of the case by the defendant by the moment of the first statement on the merits. Such a proposal is controversial and significantly limits the procedural rights of the defendant. The Estoppel doctrine itself is based on the principle of "Venire Contra Factum Proprium" (no one can contradict their own previous behavior). So, citizens, not fully disassembled in matters of law, do not have an understanding of the categories of jurisdiction and jurisdiction and do not know the basic principles of their distinction, which is required from the relevant court. The fact that the person did not indicate the invisolation or the unfortunateness of the dispute, does not mean that his behavior, expressed in statements and objections, contradicts his initial behavior. In addition, the concept is not clear whether the side is deprived of the right to appeal judicial decision Due to the unoblays, the dispute is court. Due to the above, we consider this proposal to be controversial, entailing the risk of restricting the possibility of realizing by citizens of their procedural rights.

2. It is proposed to install court right to attract a second defendantEven if the plaintiff does not agree to this (paragraph 4.1). This provision will contradict the basic principle of civil proceedings - the principle of dispositionability, since the requirements of the plaintiff, when attracting the second defendant by the court, there are no on its own initiative, but at the discretion of the court. Thus, the court itself forms a legal relationship between persons. This proposal is not included in the Unified Civil Procedure Code.

3. in paragraph 5.2. The following is approved: "In addition, the provisions on persons who may be representatives in court practically literally coincide in the Code of Civil Procedure (Article 49) and the APC (Article 49), it is advisable not to include a proposal for authority legal representativesSince legal representatives are covered by the concept of "persons who have properly decorated powers for doing business", and on documents confirming the powers of legal representatives will be told in the article "Registration and confirmation of powers in court".

This proposal is not quite correct due to the following. Legal representatives by virtue of law have a certain amount of material and procedural rights. The phrase "Persons who have properly decorated powers implies the execution of powers of representatives in a certain law legal form (for example, power of attorney). Legal representatives are not required to be a special form of consolidating their powers, which means that they cannot enter into a group of persons who have properly decorated powers, since the execution of powers as such is missing.

4. Offered to install exhaustive list of evidence (clause 6.1). At the same time, in justifying the need to establish an exhaustive list of evidence, there are arguments about the erosion of evidence when they are inexhaustible list and the absence of the procedure for evaluating "other evidence". Taking into account the continuous evolution of the theory of evidence, the rapid development of information technologies and the emergence of new unplanned types of evidence, this proposal does not deserve support. In this case, the Parties, justifying its requirements and objections, referring to any non-classical type of evidence, should not bear the burden of qualifying it as one of the named-comprehensive types of evidence, but to provide them in the manner specifically provided for other evidence, which In turn, must be determined as universally as possible.

5. In paragraph 6.4. It is proposed to more widely regulate questions. the admissibility of evidence Taking into account the experience of Kazakhstan, including the following standard into the Unified Civil Procedure Code: "The inconsistent evidence includes those obtained in violation of the requirements of the law, which influenced or could affect the accuracy of the actual data obtained, including those obtained:

With the use of violence, threats, deception, as well as other illegal actions;

Using the delusion of a person who participates in the case, relative to their rights and duties arising from the indeliable, incomplete or improper explanation to this person;

In connection with the procedural action by a person who has no right to produce production under this civil case;

In connection with the participation in the procedural action of the person to be dispersed;

With a significant violation of the procedure for the production of procedural action;

From an unknown source or from a source that cannot be established at the court session;

With the use of methods contrary to modern scientific knowledge during proof.

The proof should be admitted unacceptable regardless of the reliability or inaccuracy of the data obtained. In this case, the fact of violation of the rule of law upon receipt of the proof by itself entails such consequences as the inadmissibility of evidence and no exceptions from this rule can be, since it is obvious that the proposed wording can lead to abuse when collecting evidence.

It causes an objection and proposal to recognize such evidence that are obtained "with the use of violence, threats, deception, as well as other illegal actions, as well as" using the delusion of the person participating in the case, relative to their rights and duties arising from indelications, Incomplete or improper explanation to this person. " This provision is not inclusive to the Unified Civil Procedure Code and can create serious practical problems. So, in case of challenging the contract as a transaction on the basis of Article 178 of the Civil Code of the Russian Federation ("The invalidity of the transaction committed under the influence of a significant error") of the parties to lose the right to refer to the content of the contract, since the provisions of the Agreement were formulated under the influence of deception and in the confusion of the person.

6. According to the developers of the Concept, it seems appropriate to determine the rule according to which actually incurred expenses, including expenses for payment of the representative of the representative (with the proven cost of expenses), subject to compensation in full (clause 7.4.3). We believe in general, this provision is progressive, taking into account the possibility in exceptional cases to require reducing the imposed judicial expendituresHowever, at the same time, we note the essential need to develop pre-trial conciliation procedures. Only at the same time, the proposed rule can be supported.

7. The concept proposes to consolidate the rules about agreement on recognition of factswhich is already known to some extent arbitration proceedings. Such an offer should be recognized as positive, but only with the reservation, that this agreement is approved by the court considering the case. As a basis for solving the issue of the procedure and procedure of its approval, we offer the norms on the approval of the settlement agreement.

8. It is proposed in the new draft of the Unified Civil Procedure Code of Russia to preserve the Institute refusal to accept the claim (clause 12.5). In our opinion, in this case it will be logical to establish a different rule. So: The arbitration courts towards the courts of general jurisdiction are the courts of special competence, at least due to the specifics of the cases considered by the arbitration courts. The principle of specialization of courts involves the narrowing of the circle of the cases under consideration, change general Powers ships common competence and much more. Based on this, we consider it necessary to introduce a reverse rule in the new draft of the Unified Civil Procedure Code of Russia, according to which the courts of general jurisdiction are not entitled to refuse to accept the claim, and the arbitration courts have the right to refuse to accept the application. In addition, we propose to endow the courts of general jurisdiction to the right to transfer concluded cases. In the aggregate, these rules will solve the problem of competition of jurisdiction of vessels of two court systems. As K.Yu.n., Associate Professor of the Department of Civil and Administrative Proceedings S.M. Mikhailov, in such a situation "it is necessary to exclude the problem of" hanging "of cases between the courts of two subsystems. In this case, two approaches are possible: the first is that none of the courts cannot refuse to accept the claim due to unrelism and any of the courts could convey the case under jurisdiction; The second is based on the principle of specialization of ships. Given the fact that the court of general jurisdiction has a wide competence, it is logical to provide him with the right to transfer cases on jurisdiction and deprive the right to refuse to accept the claim. At the same time, arbitration courts will refuse to accept the claim due to the priority of the dispute. "

9. According to the concept, it is proposed to develop pre-trial reconciliation between the parties, including by introducing separately, exactly verified categories of affordable complaints of dispute resolution, as well as determine under what conditions certifying order It is considered complied with (clause 15.1). This position of the concept cannot be supported. Problems of legal establishment of a complaint of the dispute resolution are the problems of substantive law and should not be governed by procedural law. Failure to complain of claim refers to non-compliance with the conditions for the realization of the right to present the requirements (Claim), and should entail the relevant procedural consequences. Only in such a way, it is possible to regulate the relationship regarding the claim order of resolving the dispute of procedural law.

10. It seems that refusal of the principle of continuitySupacked in paragraph 16.3, although it will accelerate, and simplify the proceedings, but significantly worsen the quality of justice. Breaks at court sessions inevitably affect the assessment of judicial evidence and the general presentation of the judge about the case under consideration.

11. In paragraph 26.1. Concepts are offered very controversial innovation - consolidation of the possibility challenged unpublished and unregistered regulations and acts of interpretation. We consider the introduction of such practices not quite consistent in mind the following. Acts affecting the rights, freedoms and duties of a person and citizen, due to part 3 of article 15 of the Constitution of the Russian Federation, cannot be applied if they are not officially published for universal information. Lack of registration of the regulatory act of the federal authority executive poweraffecting the rights, freedom and obligations of citizens - direct violation of the rules for the preparation of regulatory legal acts. In violation these requirements Regulatory legal actsAs not entered into force, cannot be applied. Accordingly, individuals of private law cannot base their requirements on the basis of such acts, and officers Do not have the right to apply such acts. So, if officials apply the above acts, the person has the right to apply in the order of appealing of abnormative acts (actions, inactions, solutions, etc.).

As for the acts of interpretation, in most cases it is recognized that the interpretation acts cannot contain mandatory rules of behavior, and the act itself is not regulatoryly legal. Therefore, therefore, the criterion, acts of interpretation are not subject to appeal in the proposed form of legal proceedings.

12. In paragraph 52.1. Concepts are proposed for procedural savings when considering the case of a case in cassation (in the "second cassation") and supervisory instances retreat from the principle of the perception of proceedings. We note that the consolidation of this proposal in the Unified Civil Procedure Code will negatively affect the competitiveness of the process, and will also lead to the infringement of the rights of persons unable in writing to competently formulate their requirements and objections. The latter, in turn, will affect the quality of justice. According to S.M. Mikhailov, in this case, the problem is that the court can not always check the judicial act only on the basis of written materials of the case, while the testimony of stakeholders contribute to the correct assessment of such an act.

13. As part of the Concept, it is proposed to establish "Filter" for the "second cassation" With regard to the adoption of the work on the production on the basis of acceptability criteria. At the same time, developers offer two types of admissibility: formal criteria and significant acceptability criteria. With the formal criteria of admissibility, we fully agree, but we do not see the need for their allocation. The concept of substantial nature refers to violations of the norms of financial law and (or) the norms of procedural law that influenced the outcome of the trial and led to the violation of their rights and legitimate interestsmust be determined by collegially. We note that the court at the stage of initiation of the case in the cassation instance does not have the opportunity to comprehensively study the materials of the case and come to the conclusion about the validity or unreasonable cassation appeal.

14. The concept proposes a new type of sanctions in executive work – court Fine). Of course, there are cases when the failure to fulfill the court decision is beneficial for the debtor, however, in most cases, the failure to fulfill the court decision is dependent on the financial situation of the debtor, and the Astrate is unable to stimulate the latter to the voluntary execution of court decisions, but will only lead to an increase in the overall debt of the person. In this case, the astrenter has already been introduced into the Russian legist system With entry into force on July 1, 2015, changes in Civil Code RF (paragraph 1 of Article 308.3 of the Civil Code of the Russian Federation), in accordance with which the court has the right to award money at the request of the creditor at the request of non-fulfillment judicial act On the performance of obligations in nature. This amount is qualified in the Civil Code of the Russian Federation as a penalty. At the same time, as well as the establishment of a penalty for obligations, we believe that the Astrite itself is not able to solve the problem of non-performance of judicial acts.

Sergey Sharov

lawyer, analyst of the Center for Legal Monitoring MOGU

It is known that after a day, a person can reproduce only 60% of previously received information, in two days - 30%. More about this: Rubekhov G.S., Brenbum P.D. Psychological issues of legal proceedings // Psychological magazine. 1986. T. 7. N 3. P. 92 - 93.

See: Decree of the Government of the Russian Federation of August 13, 1997 No. 1009 "On approval of the rules for the preparation of regulatory legal acts federal organs executive and their state registration »// Meeting of the legislation of the Russian Federation. 1997. No. 33. Art. 3895.

The working group, which was engaged in the preparation of the concept of the Civil Procedure Code, designed to replace the Civil Code, the APC and adopted in the first reading of the Coach, demonstrated the results of his work on the legal community. The authors promise unification with the "preservation of the most successful developments" from the existing codes. The procedure for changing the claim is invited to take from the APC, the parties will be more rights and obligations, reanimated idea You O. judicial conciliations, and Latigatorsavernyak will be satisfied with suggestions about court costs.

The concept of "single" Civil Procedure Code must be ready for December, spoke in the summer of United Russia, head of the State Duma Committee on the legislation of Pavel Krasheninnikov, recognizing that the semi-annual term for its development is "too small." But the members of a specially created working group, which, in particular, entered the first deputy chairman of Peter Serkov and "Simple" Vasily Nechaev, Gennady Zhilin, judge Constitutional Court, Chairman of the Arbitration Court of the Ural District Irina Reshetnikova and Vladimir Korniev, Deputy Cap intellectual Rights, I coped faster. Today in Yekaterinburg, a presentation of the draft document took place. According to Krasheninnikov, the presidential administration and Supreme Court Support the creation of a new CCD. The United Russia notes that the draft concept will still change. "[Unified Procedural Code] will be developed for a long time and carefully," says parliamentarian. And by the time, according to his opinion, the presidential KOS will probably acquire the status of the law. "God will give, and the third code is unifying," he hopes.

The project provides for the creation of a document under the name "Civil Procedure Code of the Russian Federation" instead of the Code of Civil Procedure and APK, as well as the Administrative Code of Administration of the Russian Federation (Coa), the project of which the State Duma managed to approve only in the first reading. This will allow "eliminate contradictions" between them, they say concept developers. They did not eat on the main thing - on the delimitation of items between the arbitration courts and the courts of general jurisdiction, as well as within these systems. The authors of the document explain this by the fact that questions judicial competence The degree of load on that or another court is determined, and this already has more economic than legal attack: the issue is associated with states, an increase in either a decrease in the financing of one or another judicial subsystem or specific vessels.

Concept authors promise to "preserve the most successful developments" of existing codes. These, in particular, they consider the possibility of filing claims in electronic form in the arbitration process. With reference to the data of arbitration courts, the concept developers indicate that more than 20% of applications are submitted to the arbitration court in electronic form, but the prospects are not quite confident: "subject to life software package "My arbiter" would be desirable to keep electronic feed documents in arbitration courts. "

Unification

The authors of the document offer to create uniform rules to attract the defendant. They consider it necessary to resolve the court to attract the second person in this quality, even if the plaintiff disagrees to replace the defendant, recognized by the court Inappropriate. Now I have such a right in the apk judges, but there is no GPC. In civil proceedings, the judges have to consider the case at a presented claim, the concept is said.

Require unification, according to the authors of the project concept, procedural normswhich are now formulated in Art. 39 GPK and Art. 49 APK, - On changing the basis or subject matter, changing the amount of claims, refusal to claim, recognizing the claim, the settlement agreement. The first code of these actions does not put in the framework of any instance, and the second provides that the plaintiff only before making the court of first instance of the decision on the merits can change the basis or subject of claim, to increase or decrease the amount of claims and abandon the claim in whole or in part, and The appeal will work only the refusal of the claim. Experience arbitration system The document developers like more. "A similar solution to the issue greatly makes it difficult to revise the decisions of the court in the cassation and supervisory instance, whose authority is limited," they write.

In addition, it is proposed to do single rules award compensation for violation of the right to legal proceedings in reasonable time or the right to execute a judicial resolution. Now, the authors of the document are noted, the judge considers such cases on the CCP (Art. 244.8), and the apk (Art. 222.8) is a collegial composition. In the agro-industrial complex and Civil Procedure, the question of appeal is also regulated in different ways: in the civil procedure, the complaint is filed as an appeal, and in the arbitration to the cassation. Do I need to choose something or create new order, the authors of the document do not speak, but it is proposed to abandon the existing standards, according to which the courts can return an application for compensation, if they establish that the term of proceedings or execution of the judicial act "is obviously indicative of the absence of a violation of the right." Such a definition is equivalent to the consequences of the decision in favor of the state, the developers of the concept, and this "contradicts the main goal of justice and creates uncertainty in legal Nature Institute for the Return of the statement of claim. "

It is also planned to unify concepts. The concepts of the concept are offered, for example, to refer to all the orders, decisions, definitions and resolutions by the generalizing term "judicial acts", as it is provided for in the APC. In the CCP, so far for this uses the concept of "judicial decrees".

Rights and obligations of the parties

The authors of the document consider it necessary to use Estoppel in disputes on the jurisdiction. In their opinion, in the kgf there should be a restriction for submitting the respondent's objections on this issue to the moment of the first statement on the merits of the case. This need to avoid abuse procedural rights, Developers say. And with the consent of the plaintiff, the case will be transmitted from one court to another, if it turns out that it is inexplemented first. At the same time, in contrast to the rules introduced in 2002 (Art. 7 of the FZ-96) in case the plaintiff does not agree with this, it is not provided for the termination of the proceedings, but leaving the application without consideration. "Otherwise, the possibility of judicial protection will be closed for the applicant, since judicial system It becomes unified, "the concept says.

Its developers want to increase the role of the parties in the process. "It is important to impose a duty to [they] to direct the opposite side, other persons participating in the case, copies of claims, other competitive documents and evidence," the authors insist. Now this duty is only among arbitration courts, and in the courts of general jurisdiction plaintiff submits statement of claim With the application number of copies by the number of persons participating in the case. In the future, the court sends the specified documents to the participants of the process.

The representative of the parties will refer to "other participants in the process", follows from the concept. According to the authors of the document, this will allow you to point out procedural status In the proceedings of the case. In kgf, as in the current APK and GPK, it is planned to be saved independent articles About representation.

Correspondence production and judicial orders

In the new kgf, the norms about absentee production are needed, members of the working group are confident, but only for civil legal relationsAnd not public (now such an order is provided only in the CCP - it is not in the APC and the Koach project). His point of view developers illustrate statistics. "In 2013, the amount of rendered increased by 6.2% by correspondence solutions and amounted to 981,000 cases (in 2012 - 923 300), and their share in the general number of cases considered with the decision of the decision was 14.9% (in 2012 - 12.9%), "the concept says. Her The authors are convinced that such an order can be applied if the following conditions are followed: the respondent's failure to appear, the notice of the plaintiff appropriate for consideration of the case in the order of absentee production, the lack of good reasons Disappointing, the lack of a request for the respondent about considering the case in his absence.

Pick up the developers of the concept idea of \u200b\u200bthe sun on the introduction into the arbitration process of such an institution as a court order, which is provided for in the Code of Civil Procedure. "The legal regulation of ordinary production has justified itself. The number of court orders made by the magistrates in 2013 amounted to 5.99 million, or 70% of the total number of cases discussed with the decision of the decision, which is 1.5 times more than in 2012 , The authors of the document are noted. "The list of requirements for which a court order may be made must be exhaustively set out in the KGS, the document says. - It should be borne in mind that the judicial order cannot be accepted according to the statements about the recovery real Estate, on the performance of obligations in kind, on the recognition of the transaction invalid and on the use of the consequences of its invalidity, on the transfer of rights and responsibilities for the transaction, etc. ".

Legal costs

Very detail the concept of the concept speaks on the topic of court costs. They offer to move away from the Rules enshrined in the APC and the GPC when the expenses for the payment of the representative of the representative are reimbursed within reasonable limits. Their prognosis should be compensated in full, the authors of the document are confident. The exception is this: the amount may be reduced if the losing case side will prove the unscrupulousness of the opponent or its representative in determining the size of the remuneration or the artificiality of increasing costs. This may be, for example, cases where the winner is affiliated with his judicial representative Or has a different opportunity to influence the terms of the contract, the amount of remuneration is artificially increased or if the evidence was harvested in respect of which their neubility or inadmissibility is visible.

In 2012, the Presidium of the Supreme Arbitration Court decided that the trial costs of a third party could be reimbursed, and now the concept developers propose to consolidate this principle in the KGS. "To court costs should include any costs of the parties or third parties involving them in the case," they write. The judicial is invited to include expenses actually incurred by the plaintiff before the initiation of the case in court associated with compliance with the mandatory pre-trial order Resolutions of the dispute, the preparation of the position for appeal to the court and the payment of state duty. These thoughts are conjugate with the offer of Sun. Write in the APC as general rules Mandatory use of a claim or other pre-trial order to resolve disputes.

But if the party violated such an order and the dispute reached the court, the court costs should be attributed to it regardless of the results of the consideration of the case, the authors of the document are considered. In addition, it is said in it, the court has the right to shift all such costs for those who abuse their procedural rights or does not fulfill the duties if it led to a breakdown court session, delaying the trial, preventing the consideration of the case and the adoption of a legitimate and reasonable judicial act.

The principle of proportional distribution of court costs with partial satisfaction of the requirements is proposed to specify: the plaintiff reimburses the expenses of the respondent in the relevant proportion, and the defendant is the exploitation of the plaintiff. This rule, follows from the document, should also be extended to non-property requirements, determining that in the case of partially their satisfaction, legal costs are distributed between the parties in proportion to equal shares.

Special order Developers want to foresee for cases when the case ended with the reconciliation of the parties. "It is preferable to the partial costs distribution in the text of the settlement. If this is not done, the court allows this issue when approving the settlement agreement in common order"," offer the authors of the concept.

Students in resignation will be offered a new job in court

Serious attention in the concept is paid to reconciliation of disputes in court. The document states that the judge makes a proposal to go for this, provides mediation, but, in addition, the developers return to the idea of \u200b\u200byou about judicial conciliators.

This procedure should not replace mediation, refine the authors. "Judicial reconciliation can be considered as a kind of look at the court considered by the court, indicating the parties to the dispute on possible ways to resolve the conflict to the world in order to resolve the dispute and conservation between the parties to business relations," the document says. The authors clarify that a judicial conciliatory can act as a judge, a assistant judge who does not participate in the consideration of the case, an employee of the court apparatus having a higher legal education. At the same time, the latter are not participants in the process and are not entitled to perform actions that entail the emergence, change or termination of the rights or duties of persons participating in the case, and other participants in the arbitration process.