Production in the court of first instance ______. Doc
Production in the court of first instanceLecture questions:
Jurisdiction.
General conditions of trial.
Trial.
Court sentence of first instance
Pulling the sentence with the consent of the defendant with the accusation.
1. Substitution
The jurisdiction is a set of signs of a crime, in accordance with which the criminal procedural law defines the court to eligible to consider this case as a court of first instance.
In accordance with Part 1 of Art. 47 Constitution of the Russian Federation No one can be defeated rights For consideration of his case in the court and the judge, the competence of which it is related to the law. According to Art. 5 Code of Criminal Procedure Disputes on the judgments between the courts are not allowed. Any criminal case transmitted from one trial to another in the manner prescribed by law is subject to unconditional adoption for the production of the court to which it is transmitted.
Signs of jurisdiction:
Subject (generic) sign The jurisdiction determines the jurisdiction depending on the crime perfect, its qualifications:
The magistrate (as a rule, underwater criminal cases about crimes, for which the maximum punishment does not exceed three years of imprisonment);
District Court (sought confused criminal cases about all crimes, with the exception of which are subject to other courts);
Supreme Court;
garrison military court;
District (Fleet) Military Court;
Military court.
If the crime was launched in a place that the jurisdiction of one trial is applied, and it is completed in the place that the jurisdiction of another court is applied, this criminal case is subject to a court at the end of the crime;
If crimes are committed in different places, the criminal case is considered by the court, whose jurisdiction applies to the place where the majority of the investigated under this criminal case; crimes or committed the most severe of them (Art. 32 Code of Criminal Procedure).
Alternative (due to cases) - determines the jurisdiction when connecting criminal cases.
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2. Common trial conditions.
Court hearing - Procedureal form of justice during pre-trial and judicial proceedings in a criminal case. The appointment of the court session is the stage in which the judge only checks the materials of the criminal case, establishes the presence of grounds for consideration of the case in the trial, not a predetermining case on the merits.
According to the criminal case, the judge takes one of the following decisions:
On appointment preliminary hearing;
On the appointment of the court session (part 1 of Art. 227 of the Code of Criminal Procedure).
Is the criminal case regardless of this court
Whether copies of the indictment or indictment were presented;
whether the elected preventive measure is subject to cancellation or change;
Are the stated petitions and filed complaints are subject to satisfaction;
Are measures taken to ensure compensation for harm caused by the crime and the possible confiscation of property;
Are there any grounds for conducting a preliminary hearing.
The name of the court, the surname and initials of the judge, which made the ruling:
grounds for the decision;
About the place, date and time of the court session;
about the consideration of the criminal case of the judge solely or the court collegially;
On the appointment of a defender in cases :, provided by law;
about the call to the court hearing of persons on the lists submitted by the Parties provided by law;
on the consideration of the criminal case in a closed court session in cases of the laws provided by law;
As far as possible, except for the cases of election of preventing measures in the form of home arrest or detention.
Preliminary hearing
Preliminary hearing, according to Art. 229 of the Code of Criminal Procedure, under the presence of a petition to the exclusion of evidence declared by the Party after familiarizing with the materials of the criminal, case or after the direction of the criminal case with the indictment or indictment to the court:
if there is a reason for the return of the criminal case to the prosecutor;
if there is a reason to suspend or terminate a criminal case;
To address the issue of a special procedure of the trial;
To address the issue of consideration of the criminal gifted, the court with the participation of jury.
The preliminary hearing is carried out by the judge alone in a closed court session with the participation of the parties. Notification of the call to the court session should be sent at least 3 days before the day of the preliminary hearing.
At the request of the defendant, the preliminary hearing can be carried out in its absence. The non-appearance of others in a timely notified participants in the criminal proceedings does not prevent the preliminary hearing.
In the event that the party has stated a petition for the exclusion of evidence, the judge finds out from the other side whether it has objections against this petition. In the absence of objections, the judge satisfies the petition and makes a decree on the appointment of the court hearing, if there are no other grounds for the preliminary hearing. The petition of the protection part of the witness call to establish an alibi defendant is to be satisfied only if it was declared during preliminary investigation And it was rejected by the investigator, investigator or prosecutor. This petition can also be satisfied in the event that the presence of such a witness becomes known after the end of the preliminary investigation.
The petition to the state of protection about the recovery of additional evidence or subjects is subject to satisfaction, if these evidence and items are important for a criminal case.
At the request of the parties as witnesses, any persons who are known about the circumstances of production may be questioned. investigative actions or seizure and encouragement to the criminal case of documents, with the exception of persons with testimonial immunity.
During the preliminary hearing, the Protocol is conducted (Art. 234 of the Code of Criminal Procedure).
According to the preliminary hearing results
the judge takes one of the following decisions. :
On the direction of the criminal case on jurisdiction;
On the return of the criminal case to the prosecutor;
on suspension of criminal proceedings;
on termination of the criminal case;
On the appointment of the court session.
The general conditions of the trial are the rules enshrined by law that determine the procedure for consideration of cases throughout the trial.
The general conditions of the trial include:
immediacy and perisher
publicity,
invariance of the court,
Equality of the rights of the parties and others.
Publicity provides for open proceedings of criminal cases in all vessels. Closed trial It is allowed on the basis of the definition or judgment of the court in cases where:
The trial of the criminal case in court may lead to a disclosure by state or other secrets protected by federal law;
criminal cases of crimes committed by persons under the age of sixteen years are considered;
Consideration of criminal cases of crimes against sexual inviolability and sexual freedom of personality and other, crimes may lead to the disclosure of information about the intimate parties to the life of participants in criminal proceedings or information degrading their honor and dignity;
Requires the interests of ensuring the safety of participants in the trial, their close relatives, relatives or loved ones.
In the event of a criminal case consideration, only the introductory and resolution part of the sentence can be announced on the basis of the definition or judgment of the court.
The invariance of the court is that the criminal case is considered by the same judge or one and the same composition of the court, and if any of the judges are deprived of the opportunity to continue participation at the court session, it is replaced by another judge and trial of a criminal case starts first.
Equality of the Parties is manifested in the equal opportunities of the parties to declare taps and petitions, to submit evidence, to participate in their research, to act in judicial debates, to submit written formulations on the issues listed in the law, consider other issues arising during the trial.
The law establishes the limits of the trial both in relation to the subject and in relation to the circle of persons. The trial is carried out only with respect to the accused and only charged it. The change in the court proceedings is allowed if this does not deteriorate the situation of the defendant and its right to defense (Article 252 of the Code of Criminal Procedure).
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3. Judicial proceedings
Judicial proceedings - court session of the courts of the first, second and supervisory instance.
As a result of the consideration of the criminal case, the meeting of the court of first instance decides on the recognition of a criminal punishment guilty of the crime and appoints to him or recognition of him innocent. Solving these issues, the court carries out its main function of justice. The trial is thus a form of adventure of justice.
The subject of the trial in is the case of a criminal offense. Under the crime it is necessary to understand the perpetrators of the social dangerous Actprohibited by the Criminal Code under the threat of punishment (Art. 14 of the Criminal Code).
^ The trial is decisive stage criminal
process, since at this stage:
All the principles of the criminal process are most fully manifested;
Justice in criminal cases is carried out by consideration and permission;
The evidence is investigated and evaluated by the court;
Actual circumstances are established;
The guilt or innocence of the defendant is determined;
Appointed punishment for the perpetrators of the crime.
place and date of the meeting, time of its beginning and end;
What criminal case is considered;
The name and composition of the court, the data on the secretary, translator, the prosecutor, the defender, the defendant, as well as the victim, the civil plaintiff, the civil respondent, their representatives and other persons caused to courts;
data on the identity of the defendant and chosen in relation to the extension;
court actions in the order in which they took place during the court session;
statements, objections and petitions of persons participating in criminal case;
definitions or decisions made by the court without removal in the advisory room;
definitions or decrees made by the court with the removal of the accommodation room;
information on clarification of the participants of the criminal proceedings of their rights, responsibilities and responsibilities;
detailed content of the readings;
Questions asked interrogated and their answers;
The results of inspections made at the court session and other actions to study evidence;
The circumstances that participants in criminal proceedings are asking for a protocol;
The main content of the speeches of the parties in the judicial debate and the last word of the defendant;
information about the announcement of the sentence and explain the procedure for familiarization with the trial of the court session and bring comments on it;
information about clarification of justified and convicted order and the term of appealing of the sentence, as well as the explanation of the right to apply for participation in the consideration of the criminal case by the court of cassation instances.
The sequence of trial
The trial, taking into account the focus of the procedural actions taken, is customary to divide five components:
Preparatory part of the court session;
judicial consequence;
judicial debate;
the last word defendant;
Decision and sentence.
^ Judicial consequence Begins, according to Art. 273 of the Code of Criminal Procedure, with the state prosecutor of the defendant, and in criminal cases of private accusation with the statement of a private prosecutor. The presiding story finds out the attitude of the defendant to the charges.
Then follows the main part of the judicial investigation - the study of evidence in the case. First, the evidence submitted by the accusation side is also investigated, then a security party. Associate the defendant, then the victim, witnesses. At the request of the parties or on its own initiative, the court has the right to call for interrogation of the expert, to appoint forensic examination. Inspection of material evidence is carried out at any time of the judicial investigation at the request of the parties. In the manner prescribed by law, the evidence of the defendant, the victim and the witness, previously data in the production of a preliminary investigation or trial, as well as documents introduced to a criminal case or submitted at the court hearing, if they are set out or certified circumstances For a criminal case. The parties submitted to the court session or the courts requested by the court may be attached to the materials of the criminal case. Based on the definition or judgment of the court, terrain and premises may be conducted (Art. 287 of the Code of Criminal Procedure), investigative experiment (Art. 288 of the Code of Criminal Procedure), presentation for identification (Art. 289 of the Code of Criminal Procedure), examination (Art. 290 of the Code of Criminal Procedure).
At the end of the study, the evidence submitted by the parties is presiding the parties to the parties, whether they want to supplement the judicial investigation. In the case of a petition for the completion of the judicial investigation, the court discusses it and takes the appropriate decision. After the permission of the petitions and the fulfillment of these necessary judicial actions, the presisions announced declares the judicial investigation (Art. 291 of the Code of Criminal Procedure).
^ Debate of the Party Consist from the speeches of the prosecutor and the defender, and with its absence - the defendant. The victim and his representative can also participate in the debate. The civil plaintiff, the civil respondent, their representatives, the defendant have the right to apply for participation in the debates of the parties. The sequence of performances of the participants of the proposals of the parties in a part not established by law is established by the court. The principal of the parties is not entitled to refer to the evidence that was not considered at the court session or declared invalid by the court. The court is not entitled to limit the duration of the proposals of the parties. At the same time, the presiding party has the right to stop persons participating in the debate, if they concern circumstances that are not related to the criminal case under consideration, as well as evidence recognized by unacceptable. After saying the speeches by all participants in the debate of the parties, each of them can perform one more time with a replica, that is, to make a comment on the speeches of other participants. The right of the last replica belongs to the defendant or his defender.
After the end of the debate of the parties, the chairperson gives the defendant last word. No questions for the defendant during his last word are not allowed. The court may not limit the duration of the last word defendant in a certain time. At the same time, the presiding party is entitled to stop the defendant in cases where the circumstances referred to the defendants are not related to the criminal case under consideration (Art. 293 of the Code of Criminal Code of the Russian Federation).
If the participants in the debate of the parties or the defendant in the last word will inform about new circumstances that are important to a criminal case, or will make it necessary to submit new evidence to the court for study, the court has the right to resume judicial investigation. At the end of the renewed judicial investigation, the court reiterates the debate of the Parties and provides the defendant last word (Art. 294 of the Code of Criminal Procedure).
Having heard the last word of the defendant, the court declares the time of the sentence and is deleted in the advisory room for its resolution. During the resolution of the sentence, only judges belonging to the court under this criminal case may be located in the deliberative room.
4. Verdict
The sentence is the decision on innocence or guilty of the defendant and appointment to him or about the release of him from punishment, made by the court of the first or appeal instance.
The court decides the sentence with the name Russian Federation (Art. 296 of the Code of Criminal Procedure). As the most important act of justice, which entered into force, the sentence becomes generally obligatory and exceptional. Combining the nature of the sentence is manifested that its fulfillment is necessarily not only for the participants of the criminal process, but also for all state bodies, organizations, officials and citizens and are subject to execution throughout the Russian Federation. The exclusiveness of the sentence is that with its entry into force, the criminal case is unacceptable in relation to the same person and by the same charge.
The verdict of the court should be:
legal;
reasonable;
Fair.
The requirement of validity is that the Court establishes the verdict only on the evidence that was considered at the court hearing and were obtained in compliance with the Criminal Law.
The legality and validity in aggregate determine the fairness of the sentence as a moral requirement for it.
Article 299 of the Code of Criminal Procedure of the Russian Federation obliges the court under the decision of the sentence to solve the following questions:
Whether it has been proven that there was an act of committing a defendant;
Whether it has been proven that the act committed the defendant;
Is this an act of a crime and what paragraph, part of the article of the Criminal Code of the Russian Federation, it is envisaged;
whether the defendant is guilty of committing this crime;
whether the defendant punishment for the crime committed them is subject to;
Are there any circumstances mitigating or aggravating punishment;
What punishment should be appointed defendant;
whether there are foundations for the resolution of the sentence without the appointment of punishment or liberation from punishment;
What kind of type correctional institution and the mode must be determined by the defendant in the appointment of the punishment in the form of imprisonment;
whether a civil lawsuit is subject to satisfaction, in whose favor and in what size;
what to do with the property to which arrest is imposed to ensure a civil law or possible confiscation;
what to do with real evidence;
for whom and in what amount the procedural costs should be assigned;
Should the court in cases provided for by Art. 48 of the Criminal Code of the Russian Federation, to deprive the defendant special, military or honorary title, classy rank, as well as state awards;
can be applied forced measures of educational impact in cases stipulated by articles 90 and 91 of the Criminal Code of the Russian Federation;
May be applied forced medical measures in cases provided for by Art. 99 of the Criminal Code of the Russian Federation;
Should you cancel or change the measure of restraint against the defendant.
Depending on the final permit, the question of the guilt or innocence of the defendant in court differ two types of sentence:
accusing
excuse.
The conviction decides:
with the appointment of punishment to be serving the convicted person;
with the appointment of punishment and exemption from his serving;
without punishment.
The acquittal Decided, according to Art. 302 Code of Criminal Procedure, in cases if:
The event of a crime is not established;
The defendant is not involved in committing a crime;
In the act of the defendant there is no composition of the crime;
With regard to the defendant board of the jury, an exclusive verdict was made.
The sentence consists of introductory, descriptive-motivative and operative parts.
In the event of a criminal case consideration, only the introductory and resolution part of the sentence (part 7 of Article 241 of the Code of Criminal Code of the Russian Federation) may be announced on the basis of the definition or judgment of the court. In this case, the court clarifies the procedure for familiarization with its full text.
The introductory part of the sentence indicates (Article 304 of the Code of Criminal Procedure):
On the resolution of the sentence with the name of Russian Federation;
date and place of sentencing;
The name of the court who was the sentence, the composition of the court, the data on the secretary of the court hearing, about the prosecutor, about the defender, the victim, the civil plaintiff, the civil respondent and their representatives;
surname, name and patronymic of the defendant, date and place of birth, place of residence, place of work, occupation, education, marital status and other data on the identity of the defendant that are important for a criminal case;
Item, part, Article of the Criminal Code of the Russian Federation, which are responsible for the crime committed by the defendant.
^ Descriptive-motivation part The indictment must contain:
Description of criminal act recognized by the court proven, indicating the place, time, method of its commitment, the form of guilt, motives, goals and consequences of the crime;
The evidence on which the conclusions of the court regarding the defendant and the motives for which the court rejected other evidence was based;
Indication on circumstances mitigating and aggravating punishment, and in case of recognition of the charges of any part unreasonable or establishing incorrect qualifications of a crime - grounds and motives for changing the accusation;
the motives for solving all issues relating to the appointment of criminal punishment, exempt from it or its serving, the use of other measures of impact;
Justification of decisions made on other issues (Art. 307 of the Code of Criminal Procedure).
the exclusive sentence is set out:
The essence of charges;
criminal case circumstances established by the court;
the basis of the justification of the defendant and evidence, their confirmation;
the motives for which the court rejects the evidence submitted by the accusation side;
Motives of decisions regarding civil law. It is not allowed to include in an exclusive verdict of the wording that questioned the innocence of justified (Article 305 of the Code of Criminal Procedure).
surname, name and patronymic of the defendant;
The decision to recognize the defendant innocent and the founding of its justification;
The decision to cancel the preventive measure if it was elected;
The decision on the abolition of measures to ensure property confiscation, as well as measures to ensure compensation for harm, if such measures have been adopted;
Clarification of the procedure for compensation for harm related to criminal prosecution (Article 306 of the Code of Criminal Procedure).
Surname, name and patronymic of the defendant;
the decision to recognize the defendant responsible for the crime;
item, part, the article of the Criminal Code of the Russian Federation, which are responsible for the crime, in which the defendant is considered guilty;
The view and amount of punishment appointed by the defendant for each crime in which he was found guilty;
The final measure of punishment to be departed on the basis of Articles 69 - 72 of the Criminal Code of the Russian Federation;
The type of correctional institution, in which he must serve the sentenced to imprisonment, and the regime of this correctional institution;
the duration of the test period in the conditioned condemnation and obligations that are imposed on the convicted person;
The decision on additional types of punishment in accordance with Art. 45 of the Criminal Code of the Russian Federation;
The decision on the warning time of the preliminary detention, if the defendant before the sentence was detained or the preventive measures were used in the form of detention, home arrest, or he was placed in a medical or psychiatric hospital;
Decision as far as possible in relation to the defendant before the sentence entry into force.
In cases of the release of the defendant from serving the sentence or sentencing, without appointing punishment, this is also indicated in the operative part of the sentence (Article 308 of the Code of Criminal Procedure).
In addition to the above, according to Art. 309 of the Code of Criminal Procedure, in the operative part of the sentence should be provided:
The decision on the presented civil law;
solving the issue of material evidence;
Decision on the distribution of procedural costs.
Private definition in criminal proceedings - the definition of a court (judge) aimed at eliminating violations of the law and law enforcement detected in the criminal case.
The court has the right to endure a private definition in cases if it recognizes it necessary. In private definitions, the court draws the attention of organizations and officials to the facts of violations of the law, requiring the adoption of the necessary measures. Like any other court definition, a particular definition should be legitimate, reasonable and motivated.
The grounds for submission of private definition can be:
identified circumstances contributing to the commission of a crime;
violations of the rights and freedoms of citizens;
violations of the law allowed in the production of inquiry;
Violations of the law allowed in production preliminary investigation;
Violations of the law admitted when considering a criminal case by the subordination court.
^ 5. Pulling the sentence with the consent of the defendant with the accusation
The necessary conditions under which the accused may be a petition for a sentence without a trial:
Availability of the consent of the state or private prosecutor;
presence of the consent of the victim;
Punishment by perfect crimeprovided for by the Criminal Code, does not exceed five years in prison;
The presence of a defender.
The accused is aware of the nature and consequences of the petition declared;
The petition was stated voluntarily and after consultation with the defender;
the accusation with which the defendant agreed is reasonable;
accusation; confirmed by evidence collected. in a criminal case.
With the objection of the defendant, the state or private prosecutor who suffered against the decision of the sentence without a court proceedings or on his own initiative, the judge makes a decision on the termination of a special, order of trial and appointment of a criminal case in general.
If the judge comes to the conclusion that the accusation with which the defendant agreed is reasonable, is confirmed by the evidence collected in a criminal case, he decides to convict and prescribe a defendant punishment that cannot exceed 2/3 maximum period or the size of the most strict type of punishment provided for the crime perfect.
The descriptive-motivative part of the indictment should contain a description of the criminal act, with the accusation of which the defendant agreed, as well as the conclusions of the court on compliance with the conditions of the sentence without conducting a trial. Analysis of evidence and their evaluation of the judge in the sentence is not reflected. After the proclamation of the sentence, the judge clarifies the parties the right and order of its appeal. Procedural costs of recovery from the defendant are not subject to.
Bibliography
^ Regulations:
Universal Declaration of Human Rights. Adopted by the UN General Assembly December 10, 1948.// ATP Consultant -Plus.
Constitution of the Russian Federation dated 12.12.1993
Criminal Procedure Code of the Russian Federation.
Federal Constitutional Law of December 31, 1996 "On Judicial System of the Russian Federation" // Meeting of Legislation of the Russian Federation 1997 No. 1 of Art.1; 2001. №51. Art.4825.
Federal Constitutional Law of June 23, 1999 "On Military Courts of the Russian Federation". // ATP "Consultant Plus"
Information letter of the General Prosecutor's Office of September 17, 2003 No. 12 / 12-03 "On the practice of applying individual norms of criminal procedure Code RF. "
^ ARBITRAGE PRACTICE:
Decision Constitutional Court Of December 8, 2003 No. 18-P on the case of verification of the constitutionality of individual provisions of articles 125, 219, 227, 229, 236, 237, 239, 246, 254, 271, 378, 405 and 408, as well as chapters 35 and 39 Criminal Procedure Code of the Russian Federation in connection with the requests of ships general jurisdiction Complaints of citizens // Russian newspaper. 2002. December 23.
Definition of the Constitutional Court of the Russian Federation of April 8, 2004 No. 132-O on the complaint of the Gorsky A.V. For violation of it constitutional law p. 6 h. 2 tbsp. 231 of the Criminal Procedure Code of the Russian Federation // Russian newspaper. 2004, April 9th.
Resolution of the Plenum of the Supreme Court of the Russian Federation dated August 24, 1993 No. 7 with changes and additions made by the Decree of the Plenum dated December 21, 1993 No. 11 "On the timing of the consideration of criminal and civil cases by the courts of the Russian Federation // Collection of Decisions of the Plenum of the Supreme Court of the Russian Federation (USSR, RSFSR) in criminal cases. - M.: Prospekt.
Resolution of the Plenum of the Supreme Court of the Russian Federation of October 31, 1995 "On some issues of applying the courts of the Constitution of the Russian Federation in the implementation of justice // Bulletin of the Supreme Court of the Russian Federation. 1996 №1.
Resolution of the Plenum of the Supreme Court of the Russian Federation of October 10, 2003 No. 5 "On the application by the courts of general jurisdiction of generally accepted principles and norms international law and international treaties RF // Russian newspaper. 2003. December 2.
Resolution of the Plenum of the Supreme Court of the Russian Federation of March 5, 2004 No. 1 "On the applications by the courts of the norms of the Criminal Procedure Code of the Russian Federation" // Russian newspaper. 2004. March 25.
Resolution of the Plenum of the Supreme Court of the Russian Federation No. 1 dated April 29, 1996 "On a judicial sentence" // Bulletin of the Supreme Court of the Russian Federation. 1996. No. 7.
^ MAIN LITERATURE:
Criminal Procedure Law of the Russian Federation: Tutorial / OT. Ed. P.A. Lupinskaya. - M.: Lawyer, 2003.
Grigoriev V.N., Pobedkin A.V., Yashin V.N. Criminal Procedure: Tutorial. -M.: EXMO Publishing House, 2005.
Smirnov A.V., Kalinovsky K.B. Criminal Procedure: Textbook for universities / under the general ed. Smirnova AV .. - SPb.: Peter, 2004.
Tutorial criminal proceedings / response Ed. A.S. Kolbikov. M., 1995.
^ ADDITIONAL LITERATURE:
2. Production in the court of first instance
Production in the court of first instance is the basic stage of the civil procedure, which is initiated, is formed, filled with evidence and is resolved on the merits of a civil case. Ideally, a civil case should receive its final and proper permit at this stage. The authority of the court of first instance is much wider than the powers of subsequent courts, the main purpose of which is correction possible error, not the permission of the case on the merits. In particular, only in the court of first instance are formulated, clarified, the claims change; Only into this court, for individual exceptions, they seemed evidence by persons involved in the case, these evidence is investigated at the court session and are evaluated in the court decision. Shortcomings, errors made at this stage of the process, can not always be eliminated in the following court instanceswhich solve other tasks associated with the validity of the validity and legality of the decision of the court of first instance.
Hence the dominant role in the civil procedure belongs to the judge acting on the first instance. It is from his procedural actions, it is primarily that how timely and the civil case will be discussed and allowed and allowed, the judicial protection of the violated or disputed rights, freedoms and legitimate interests of citizens and organizations is provided.
The overwhelming majority of civil cases are considered by the first instance by the judges of district courts and the magistrates. In some cases, the view is that the world justice is created only to reduce the load on federal district courts acting on the first instance, deeply mistakenly. The main goal of creating the Institute of World Judges is to make justice more affordable, bring it to the population as much as possible. The world judge has the same tasks as before the judge of the district court, considering civil cases at the first instance. Each of them considers cases attributed by law to its jurisdiction, but according to the same norms of civil proceedings.
The actions of the judge are resolved in detail by the norms of the Code of Civil Procedure of the Russian Federation, which should be properly understood and applied since the receipt of the application to the court.
The first thing to pay attention to, considering the received statement, is the question of whether it is subject to consideration and permission in the procedure of civil proceedings, there are no circumstances referred to in Article 134 of the CCM, in the presence of which the judge makes a definition of refusal to accept Applications. If there are no such circumstances and the claimed requirement to subordinate to the courts, then it is necessary to answer the second question: is it due to this court (the magistrate)?
Without responding to these two questions, the judge cannot move to the commission of subsequent procedural actions relating to the verification of the correctness and completeness of the registration of the received application and the documents attached to it. The negative impression of the court is formed when the judge first leaves the applicant without movement, for example, by the non-payment motive state duty, and then, after eliminating the shortcomings, the faceproofing person refuses to adopt this statement on the basis of the initiality of the courts of general jurisdiction or returns a statement on the rules of jurisdiction to his other court, which subsequently makes a definition of refusal to adopt this application, as not subject to consideration and resolution in civil proceedings.
First of all, it is necessary to clearly distinguish the concepts of "jurisdiction" and "jealousness".
The rules on the jurisdiction allow us to determine the range of civil cases attributed to the competence of the court of general jurisdiction, to deliver them from cases to be considered in the manner of other proceedings (constitutional, arbitration). Non-compliance specified Rules It is the basis for the judge in accordance with the procedure of Article 134 of the Code of Civil Procedure of Motivated Definition of Refusal to accept the application and sending it to the applicant together with the application and all the documents applied to it. The refusal to accept the application prevents the applicant to re-apply to the court with a claim to the same defendant, about the same subject and on the same basis.
The rules on the jurisdiction make it possible to distribute civil cases subordinate to the courts of general jurisdiction, between various ships, to identify the court or global judge, whose competence includes consideration and permission of a particular civil case. The jurisdiction is established two species: 1) the generic (subject) - determines the level of ships (judges) of general jurisdiction, eligible for consideration of certain categories of civil cases; 2) Territorial - distributes civil cases between the courts (judges) of the same level (global judges, district courts, regional and equal courts). Submitted by the courts of general jurisdiction a statement filed with violation of the rules for the jurisdiction is returned by the definition of the judge on the basis of paragraph 2 of Part 1 of Article 135 of the Code, indicating which court should apply to the applicant.
The rules for the jurisdiction and jurisdiction of civil cases are fixed in chapter 3 of the Code of Civil Procedure. Actually, progressive issues, i.e. The determination of the circle of civil cases, attributed to the competence of the courts of general jurisdiction, is devoted in this chapter only st.22, allocating six types of production civil Affairs (paragraph 1 - 6 part 1). The remaining articles relate to the jurisdiction, divide civilian affairs between the various courts of general jurisdiction in both the territorial and generic signs.
With the use of Article 22 of the Civil Procedure, it most often makes it difficult to distinguish between the subordination of cases between the court of general jurisdiction and the arbitration court. General criteria The distinction is defined in part 3 of article 22 of the Code of Civil Procedure, according to which the courts are considered and allowed by cases provided for in Part 1 and 2 of this article, with the exception of economic disputes and other cases attributed by federal constitutional law and federal laws to the conduct of arbitration courts.
By general rule Arbitration courts are considering economic disputes and other cases arising in the field of business activitiesIf the parties in them are legal entities, as well as citizens who have the status of an individual entrepreneur acquired in installed manner (Part 1, 2 of Article 27 of the Arbitration Procedure Code of the Russian Federation (hereinafter - the APC RF)).
With this in mind when distinguishing the competence between specified vessels It is necessary to proceed from the set of two criteria: the nature of the controversial relations and their subject line.
However, this rule is an exception provided for by Article 33 of the APC, which establishes a special jurisdiction of cases to the arbitration courts. By virtue of this procedural norm, arbitration courts consider cases: insolvency (bankruptcy); on disputes on the creation, reorganization and liquidation of organizations; on disputes on refusal to state registration, evasion from state registration of legal entities, individual entrepreneurs; on disputes between the shareholder and joint-stock company, participants in other economic partnerships and societies arising from the activities of economic partnerships and societies, with the exception of labor disputes; About Protection business reputation in the field of entrepreneurial and other economic activity; Other cases arising from the implementation of entrepreneurial and other economic activities in cases provided for by federal law.
These cases are considered by the Arbitration Court, regardless of whether the participants of the legal relations, of which arose a dispute or requirement, legal entities, individual entrepreneurs or other organizations and citizens.
It should be paid to the fact that established by paragraph 4 of paragraph 1 of Article 33 of the APCs The rule of special jurisdiction (regardless of the subjects of the dispute) applies only to those disputes in which the shareholder (participant of the economic company and the defendant) appears as one party (plaintiff or defendant) ), and as the other side - the economic company, the shareholder (participant) of which it is, and provided that the dispute follows from the activities of this economic company. This rule does not act if the dispute arose between the shareholders (participants) of the same economic society, between them and third parties (other economic societies, other organizations), between the economic society and non-shareholders (participants) of this society. In these cases, the subordaginity of cases is determined by the general rules: depending on the subject and the nature of the dispute. In particular, the dispute between the shareholder and the third person on recognition invalid contract The sale of shares is subject to consideration in the court of general jurisdiction.
The requirement prescribing the judge must be observed strictly complied with C.4.22, if it is possible to separate the requirements contained in the application, of which the court of general jurisdiction, others - the Arbitration Court, to make the definition of adopting only those Requirements subordinate to the court of general jurisdiction, and refuse to make other requirements.
In practice, there are situations where, as a result of a refusal of a claim for a physical face, only legal entities remaining the requirements, subordinate to the arbitration court. Does the proceeding be subject to termination?
In this case, it should be proceeded from whether the requirements of Part 4 of Article 22 of the Code of Civil Procedure were made when making a statement containing several concerned requirements for the production of a court. If the division of claims is impossible, an individual is a proper defendant and the application was properly adopted by the court with all the requirements included in it, then, despite the change in circumstances, as a result of which the case became the subordinate arbitration court, it should be considered by the court of general jurisdiction. This conclusion is based on Part 4 of Article 1 of the Code, which allows the court in the absence of a norm. procedural lawregulating the relationship arising during civil proceedings to apply the norm regulating similar relations (analogy of the law). In this case, such a norm is part 1 of Article.33 of the Code of Civil Procedure, due to which the case adopted by the court to its production under compliance should be permitted by them essentially, at least in the future it has become a competent to another court.
It is impossible to mix the jurisdiction with the jurisdiction of civil cases.
Most often, this is manifested when the servicemen are circulated with a statement in court, when in its acceptance is denied on the basis of paragraph 1 of Part 1 of Article 134 of the Code of Civil Procedure. At the same time, refer to the fact that the application is not subject to consideration and permission in the procedure of civil proceedings, since it is considered and permitted in another judicial order, Namely in the military court. This position is erroneous; Such a statement, if it is filed by the Judge or to the District Court, is subject to return by the motive of its unquestion to this court (paragraph 2 of paragraph 1 of Article 135 of the Code of Civil Procedure).
Military courts come in judicial system The Russian Federation is the federal courts of general jurisdiction (Article 1 of the Federal Constitutional Law "On the Military Courts of the Russian Federation"). In accordance with Article 7 of the specified law and, taking into account the clarification, the data in paragraph 3 of the Resolution of the Plenum of the Supreme Court of the Russian Federation of February 14, 2000. N 9 (with subsequent changes and additions) "On some issues of applying laws of legislation on military duty, military service and the status of military personnel ", military courts are considering civil cases on claims and complaints about the protection of disturbed and (or) disputed rights, freedoms and protected interests of military personnel of the Armed Forces of the Russian Federation, other troops, military formations and bodies, citizens passing military fees, from actions (inaction) of military administration authorities, military officials and decisions adopted, as well as on claims and complaints of citizens dismissed from military service (past military fees) if they appeal or challenge the actions (inaction) of military management bodies, military officials and Decisions made by them who violated their rights, freedom and protected interests during the passage of military service, military fees (for example, cases on clauses and complaints of citizens dismissed from military service, to restore in military service, on the recovery of non-invalid monetary and other species Congratulations, because their rights are violated during the passage of the military service).
According to Article 47 of the Constitution of the Russian Federation, no one can be deprived of the right to consider the case in the court and the judge, to the jurisdiction of which it is related.
Violation of this constitutional principle He leads to the illegality of the composition of the court, considering the case and the illegality of the decision made by this court (judge), which is an unconditional basis for its cancellation (paragraph 1 of Part 2 of Article 364 of the Code).
The greatest difficulties in practice causes the division of civil cases between the magistrates and judges of district courts.
Civil cases, solved by the magistrate, are listed in Article 23 of the Civil Procedure, paragraph 1 of Article 3 of the Federal Law "On the World Judges in the Russian Federation". In accordance with Part 1 of Article 23 of the Civil Procedure of the World Judge considers as a court of first instance:
1) the case of the issuance of a court order;
2) cases of termination of marriage, if there is no dispute about children between the spouses;
3) the case on the section between the spouses of joint property regardless of the price of the claim;
4) other emerging from family legal relationship Cases, with the exception of cases of disparation of paternity (motherhood), the establishment of paternity, about deprivation parental rights, on adoption (adoption) of the child;
5) business disputes at the price of a claim not exceeding five hundred minimum wages established by the Federal Law at the time of submission of the application;
6) cases arising from labor relations, with the exception of cases of restoration at work and affairs on the resolution of collective labor disputes;
7) cases of determining the procedure for the use of property.
This list is not closed, other cases may be attributed to the federal law to the jurisdiction of global judges.
Procedural legislation determines the generic (subject matter) judgment of civil cases to the global judges and practically does not provide for the world judges no exceptions from the rules on the territorial jurisdiction.
As a general rule, the territorial jurisdiction of civil cases is determined by the residence of the defendant, the location of the organization (Article 28 of the Code of Civil Procedure). However, it is impossible to forget about the alternative jurisdiction when the plaintiff has the ability to choose between several ships (Article 29 of the Code of Civil Procedure), about the exceptional jurisdiction established by Article 30 of the Code of Civil Procedure, as well as on the contractual concern (Article 32 of the Code of Civil Procedure), which allows the parties by agreement between To change the territorial jurisdiction for a particular case before adopting it by the court to its production, with the exception of the jurisdiction established by Article 26, 27 and 30 of the Code.
IN judicial practice The question arose: what judge (court) should consider the case if one of the defendants is in the territory litterWhere is the global judge, and the second is on the territory where the world judge is not appointed?
It seems that in this case, the rules of Article 31 of the Code of Civil Procedure should be applied, due to which the claim to several respondents living or located in different places is presented at the place of residence or location of one of the defendants by the choice of the plaintiff. Consequently, the plaintiff can ask for his choice with a statement both to the magistrate and to the district court, in whose territory the world judge is not appointed.
There is an ambiguity and whether the fulfillment of the responsibilities of the Judge, appointed by the Presidential Decree of the Federal Justice of the Federal Court of General Jurisdiction or the Arbitration Court, for the period before the cessation of its powers of the magistrate in the manner prescribed by the Law of the Russian Federation "On the status of judges in the Russian Federation. " In practice, sometimes cases related to the competence of the magistrate are mistakenly transferred to the District Court on the basis of paragraph 2 of Article 12 of the Federal Law "On Jobs in the Russian Federation". However, this rate is included in final provisionsThe applies only to the appointment (election) to the position of the magistrate of the newly created litigation. If the judicial area of \u200b\u200bthe world judge carried out its activities, then when it stops or suspension, including the reason for the above, the execution of his duties is assigned to the global judge of another litigation in the manner prescribed by paragraph 3 of Article 8 of the title federal law.
As already noted, the relationship of the magistrate includes cases of ordinary production. The list of requirements on which the judicial order is issued is given in Article 122 of the Code of Civil Procedure. If the claimed requirement falls under the list specified in this norm, the amount (size) of these requirements cannot serve as a basis for changing the jurisdiction, for the transfer of an application for consideration and resolution of the district court. In particular, based on a notarized acquisition requirement for the issuance of a court order for an amount exceeding five hundred minimum wages, refusal to the magistrate. The amount (size) requirements are taken into account in determining the jurisdiction in cases where the judicial order is denied in connection with the presence of a dispute about the right (Article 125 of the Code) and the applicant addresses the resolution of this dispute in the claim.
Among the cases, the ruffles of the magistrate, a great place are occupied by cases arising from family legal relations. Analysis of the categories of cases included in the specified list indicates that the legislator, without limiting the price of the claim for the competence of the global judge to resolve property disputes, excludes any requirements related to the implementation of personal non-property rights (Parental Rights) and affecting the rights and interests of the child. Therefore, any disputes arising in connection with the implementation of such rights (cases on the claims of a separately residing parent on the procedure for communicating with the child, about determining the place of residence of the child, the transfer of the child to education, on the procedure for the implementation of parental rights, on the abolition of adoption (adoption), Restoration in the parental rights of a citizen, devoid of parental rights, etc.), is subject to consideration and resolution in the district court.
Clear and not requiring comments by the norm of claim 5 of Part 1 of Article 23 of the Civil Code, referring to the jurisdiction of the global judge case on property disputes at the price of a claim not exceeding five hundred minimum wages established by the Federal Law on the Day of Application, Really causes difficulties, especially in a part relating to the definition of the price of the claim. Thus, the price of a claim for the exterior of property, about the right of ownership of the object of real estate should be indicated on the basis of the value of the exterior property, the value of the object of real estate, but not lower than its inventory assessment or in the absence of it - not lower than the value of the object under the insurance contract, and If real estate belongs to the organization - not lower than the balance sheet assessment of the object (Article 91 of the Code of Civil Procedure). However, this assessment is often significantly lower than the valid value of the property, which is the subject of the dispute.
In our opinion, in such cases, the magistrate, guided by Part 2 of Article 91 of the Code, is entitled to independently determine the price of the claim, for example, based on the prices of the sale of similar real estate objects in this area, when information about this is available. If the price of the claim defined in this way will exceed five hundred minimum wages, then the magistrate makes it possible to determine the return of the application on the basis of paragraph 2 of Part 1 of Article 135 of the Code. The definition shall be given to the rationale established by the world judge the price of the claim and it is indicated that the applicant for the resolution of the dispute arose should be applied to the appropriate district court.
The declared requirement to restore the term for the adoption of the inheritance is subject to consideration by the global judge if the cost of controversial hereditary property does not exceed the specified in paragraph 5 of Part 1 of Article 23 of the CCP. In case of exceeding the case, the desired district court. Based on these principles, the question of the jurisdiction of cases on disputes on recognition of the right of ownership, termination of the right common property (section, separation, translation of buyers' rights, etc.) on real estate.
Cases on claims for the recovery of the sums of unpaid pensions, state manuals, taxes, fines on tax and customs legislation, rent debt and communal services Common judges at the price of a claim not exceeding five hundred minimum wages. But such cases should be distinguished from affairs about challenging the refusal in the appointment of pension, benefits or entrusted duties on the payment of tax, fine, debt on rent and utilities. In these cases, the subject of challenge is the actions (inaction), the decisions of the state body, the authority local governments, the state or municipal employee and cases are considered by the district courts in the manner determined by the head of 25 GPK.
Compensation requirement moral harm, derived from the property requirement, is due to the magistrate on the amount of the amount (size) of the property requirement (for example, in cases of consumer protection, in cases where the price of the claim does not exceed five hundred minimum wages). If the basic requirement is associated with the protection of non-property rights (intangible goods), such as the protection of honor and dignity, then cases of such requirements are subject to the district court.
If, during the period of consideration by the global judge case on the property, the plaintiff increased the amount of claims and the price of the claim exceeded five hundred minimum wages, the case must be transferred to the district court. Otherwise, situations may be artificially created, which allow us to transfer property disputes to the global judges, which, taking into account the reason for the reason for them, beyond.
When united by the global judge in accordance with the order of Part 4 of Article 151 of the Code of Some homogeneous cases, sussidated to him, taking into account the price of a claim, in one production for joint consideration and permission, it does not arrange the amounts of claims, the price of the claim for each declared requirement remains the same. The case remains a competent world judge and in the case when the total amount of claims will exceed five hundred minimum labor sizes.
Affairs arising from labor relations, susso global judges include affairs: on credit claims disciplinary penalties (except for dismissal); About compensation material damage, causing an employee organization; about changing the wording of the cause of dismissal; About recovery wages For the delay of issuance labor book and etc.
With regard to cases of determining the procedure for the use of property related to the jurisdiction of the magistrate, their composition includes cases of determining the procedure for use. land plots, buildings and other real estate objects, including cases of elimination of obstacles in the use of property (sub. 8 of paragraph 1 of Article 3 of the Federal Law "On the World Judges in the Russian Federation").
Courts subordinated by the courts, not related to the law to the competence of the magistrate, are considered by the district court as a court of first instance, if they are not attributed to the jurisdiction of others federal courts General jurisdiction (Article 24 - 27 GPC).
Question about acceptance of the statement The judge considers the work of the court within five days from the date of receipt of the application. After this period, he must bear one of the following definitions: on the adoption of a claim for the work of the court, on the basis of which civil case is initiated in the court of first instance (Article 133 of the Code of Civil Procedure); on refusal to accept the claim (Article 134 of the Code of Civil Procedure); On the return of the claim (Article 135 of the Code of Civil Procedure).
At the same time, the judge cannot immediately resolve the issue of adopting a claim for the statement of a claim that meets the requirements of jurisdiction and jurisdiction, without checking the correctness of its design and completeness of the materials attached to it. For this, first of all should be understood, whose rights and legal interests may be affected by the court considering the case, in which production is a lawsuit, special, etc. - The case must be considered. On this basis, the application form is checked, the composition of persons involved in the case, their procedural position (plaintiffs, applicants, respondents, third parties, interested persons).
Especially pay attention to the fact that procedural normsdefining general rules of claims, including those related to the design of the claim, the procedure for its presentation, adoption for production, consideration at the court session and making judicial actfully applied to other types of civil matters, in particular, on the proceedings arising from public relations, special production, etc., with those features that are installed special standards For each type of production (part 1 of article 246, Part 1 of Article 263 of the Code of Civil Procedure).
1) introductory - contains the full name of the court of first instance, which is addressed to the statement, the full name and address of persons participating in the case, the name of the demand for the defendant (for example, a statement of claim for recognition of ownership of an apartment);
2) motivative - it presents the actual and legal substantiation of the claim in it, it is indicated what the violation or the threat of violation of the rights, freedoms or the laws protected by the Law is legally significant and evidence in their confirmation, contains references to laws and other regulationsto be, in the opinion of the plaintiff, the application in the case, if the plaintiff can call the relevant legal normsWhat is responsible for his interests. This part may also be set out the petitions and their rationale is given;
3) leaking - it is described in the specific requirements of the plaintiff, elected by it the way to protect violated rights (for example, to recognize ownership of a certain apartment with detailed description This property, its location), is a request for the satisfaction of the claim, as well as appropriate applications, if they are declared simultaneously with the claim;
4) Annex to the claim, where the list of the attached documents from the number of the GPCs specified in Article 132 should be given.
The statement of claim must be signed by the plaintiff (applicant) or its representative, if such powers are specifically stipulated in the proxies issued to him, which attached to the application.
Checking compliance with the requirements for the payment of state duty, it should be taken into account the provisions of Article 333.35 and 333.36 of the Tax Code of the Russian Federation on benefits for some categories individuals and organizations, including when contacting the courts of general jurisdiction, as well as to the global judges. If the benefits are not connected with the nature of the claimed requirement, but with the identity of the plaintiff, then the application must be attached to the appropriate copy of the certificate of the established sample (paragraph 2 of Article 333.35 of the Tax Code of the Russian Federation).
The norms of the Tax Code of the Russian Federation, establishing the size of the state duty when submitting claims to the court of general jurisdiction, should be interpreted in an inextricable connection with other norms of this Code that establish the features of paying state duty and benefits for individual categories of individuals and organizations.
For example, sub.14 p.1 of article 333.19 of the Code provides that the state duty when applying for the recovery of alimony is paid in the amount of 100 rubles. If the court decides on the recovery of alimony both on the maintenance of children and the content of the plaintiff, the size of the state fee is doubled.
At first glance, according to this norm, the plaintiff must under the application for the recovery of alimony to pay the state fee in the appropriate amount. However, it should be borne in mind that by v. 2 of article 333.19 of the provisions of this article shall be applied taking into account the provisions of Article 333.20 of the Code. According to Stern.8 p.1 Art.333.20 of the Code if the plaintiff is released from the payment of state duty in accordance with Chapter 25.3 of the Tax Code of the Russian Federation, the state duty is paid by the defendant (if it is not exempted from paying the state duty) in proportion to the size of satisfied requirements. Since, by virtue of the submarines, paragraph 1 of Article 333.36 of the Code of the State Fees, the plaintiffs are exempt on claims for the recovery of alimony, they should not be paid to pay it when applying for a claim. This tax collection is charged with the defendant if it is not exempted from paying the state duty, in this case, based on the amount specified in sub.14 p.1 of article 333.19 of the Code, in proportion to the size of satisfied requirements.
In cases where the plaintiff is a citizen, and the defendant is a legal entity, the nature of the relations arising between them, of which the claimed requirement implies. If these relationships are in their essence are relations between the consumer, i.e. Citizen who acquires goods (works, services) and the seller (performer), i.e. A legal entity selling the sale of goods (performance of work, the provision of services) to any persons who will turn to it, then regardless of the title of the concluded agreement for these relations the action of the Law of the Russian Federation of February 7, 1992 is approved. N 2300-1 "On Protection of Consumer Rights", by virtue of paragraph 3 of Article 17 of which consumers under claims related to their violation of their rights are exempt from paying state duty in accordance with the legislation of the Russian Federation on taxes and fees, and also have the right At the presentation of a claim in court at its place of residence or at the location of the defendant and to compensation for moral damage caused by him. At the same time, paragraph 3 of Article 333.36 of the Tax Code of the Russian Federation should be taken into account, providing that the plaintiffs on claims associated with the protection of consumer rights are exempt from the payment of state duty in case the price of the claim does not exceed 10,000,000 rubles. When the specified duty is exceeded, the duty is paid in the amount calculated in the manner prescribed by this item.
In accordance with paragraph 2 of Article 333.20 and Article 333.41 of the Tax Court of the Russian Federation, the courts of general jurisdiction or global judges based on the property of the payer are entitled to reduce the amount of state duty to pay or delay (bypass) to pay for a period of up to six months. Therefore, a request for a decrease in the amount of state duty can be applied to the statement of decreasing the amount of state fees or the postponement of its payment. At the same time, information about the applicant's property status must be presented, without which the Court (Magistan Judge) is deprived of the opportunity to resolve a substantive petition.
If, when considering received materials, it will be established that the claim for form and content does not comply with the requirements of Article 131 of the Civil Code or the documents are not attached to it from among those specified in Article 132 of the Code of Civil Procedure, the judge is obliged to leave a statement without movement. On the leaving of the claim without a traffic of the judge in accordance with Article 136 of the Code of Civil Procedure, in accordance with Article 136, it is determined in which the specific disadvantages are set, it is established by the applicant for their correction, and also indicates the consequences of non-performance indication in set time. This period should be reasonable, i.e. Sufficient for the applicant to have a real opportunity to learn about the revealed shortcomings and eliminate them to the term provided to him. Since the definition contains all the information necessary for correcting information, in practice this information is brought to the applicant's attention by sending it a copy of the definition.
If a request is applied to the claim for a decrease in the size of the state duty or a delay (installment) of its payment, then the judge cannot leave a statement without a movement on the motive of non-payment of duty, without allowing the claimed petition.
In cases where the grounds for leaving the claim without movement is not either the applicant eliminated the noted shortcomings in the period established by him, the application is made to the work of the court and the civil case is initiated.
All procedural actions of the judge associated with the refusal to accept either the return of the claim, leaving it without movement or adoption to the work of the court, should be issued only by making the appropriate definition. Failure to comply with this compulsory requirement, simplified when the statement is returned by the letter, is a significant violation of the procedural law, violates the rights of persons addressed for judicial protection, deprive them of the possibility of appealing to a higher court that impede the movement of civil matters. The judge who made the indicated procedural error is obliged to immediately eliminate it and make a procedural action committed by the relevant definition.
After taking the claim for the production of court, the judge makes a definition about the preparation of a case for a trial, which is mandatory for each civil case regardless of its complexity (Article 147 of the Code of Civil Procedure). The judge points out the actions to be taken to Parties and other persons participating in the case, and the timing of these actions. From this point on, participating in the case of the face, as well as their representatives can begin the commission of procedural actions to prepare a case for trial.
The preparation stage is sometimes underestimated, whereas it is at this stage of the proceedings that it is possible to properly and timely consideration of the case, a basis for studying evidence at the court session is formed, a number of significant procedural issues are allowed. The procedural tasks of the preparation of the case, the list of procedural actions performed at this stage are provided for by Article 147 - 150 GPK. These norms are addressed primarily to the parties and other persons involved in the case, in the conteneration of the contestable process, the responsibility of its preparation is assigned. The judge organizes, controls and draws up the relevant procedural activities of participants in the preparation of the case. The competent leadership of the judge is important to achieve the goals of the preparation of the case.
The judge is most advisable to invite the case on reception. It is unacceptable when only one of the parties are invited to receive, as a result of which the principles and equality principles and equality are violated, since the second side is deprived of the opportunity to give their explanations at this stage of the process to specify the claims and actual grounds for these requirements. Objections, comments, declare a petition for evidence that cannot be obtained independently without the help of the court, etc. The judges may cause doubts about its objectivity and impartiality, which is the basis for the reference of the judge (Article 16 of the Code of Civil Procedure).
The judge must clarify to all persons participating in the case, their procedural rights and obligations, to offer as widely as possible to use their rights at this stage of the process: to represent the existing evidence or indicate where they are located, to declare applications about their recovery, as well as on the appointment of expertise, Taking measures to ensure evidence and a claim, clarify the claims and the actual foundations of these requirements, to represent objections on them, contact the oncoming basis.
At this stage of the process, the actual circumstances that are important for the right permission of the case are specified. At the same time, it is possible to adjust the claimant of its application by clarifying the stated requirements, including on the proposal of the judge in order to more correctly and complete their perceptions. The addition of the stated requirements, the change in the subject or foundation of the claim depends solely on the will of the plaintiff, which, in accordance with the principle of disposition, hesitates independently by the material and procedural rights belonging to it (Article 39 of the Code of Civil Procedure). The judge is not entitled to offer the plaintiff to change or supplement his demands, to suggest how best to do it, - this would lead to a violation of the principle of equality of the parties.
Change, addition or clarification of the claim should be carried out in writing - other would contradict the provisions of Article 131, 132 of the Code of Civil Procedure and could lead to a violation of the rights of other persons involved in the case, which should be presented with copies of the claim, including a changed in The process of preparing a case for legal proceedings.
The permission of the question of the composition of persons participating in the case, and other participants in the process is one of the main tasks of preparing a case for a trial. In solving this issue, the provisions of Article 41 of the Code of Civil Procedure should be taken into account, by virtue of which the court during the preparation of the case (as later during its proceedings in the court of first instance) may allow the replacement of an improper respondent as appropriate only at the petition or with the consent of the plaintiff. If the petition is not stated and the plaintiff does not agree to replace, the court is not entitled to do this on its own initiative and is obliged to consider the case at a presented claim.
At the same time, the court has the right to attract to participate in the case, including on its own initiative, a corresponding book or corresponding, if it is impossible to consider the case without participation in connection with the nature of the disputed legal relationship, as well as third parties that do not declare independent claims regarding the dispute subject (Article 40, 43 GPC).
Replacing the inappropriate defendant, recognizing third parties in the case of persons declared independent requirements Regarding the subject of the dispute (Article 42 of the Code of Civil Procedure), as well as attracting participation in appointments, third parties that do not claim such requirements is issued by the definition of the judge (court).
It should be remembered and enshrined in Article 151 of the Code of Civil Procedure. The right of judge to allocate one or more connected claims in separate production Or merge into one production several homogeneous cases in which the same parties participate, or several cases on the claims of one plaintiff to various respondents or various plaintiffs to one defendant. However, performing such actions, it is necessary to take into account possible negative consequences for persons participating in the case. In particular, the association of several homogeneous cases can lead to an increase in the period of resolution of the case on the merits due to the repeated non-appearance of one of the co-compliance or appropriate, which is negatively affecting the rights and legitimate interests of other participants in the process. In such a situation, the judge needs to correct the situation, having allocated one or more requirements at the stage of the trial. It is advisable to use this technique when the disconnection of the requirements is not reflected on the correctness of the permission of all requirements, but contributes to a more quick consideration of part of these requirements, and therefore, in the interests of conscientious participants in the process. As practice shows, in such cases, the remaining demands after that receive their rapid resolution.
The evidence can be represented by the plaintiff, as well as other persons participating in the case, not only upon presentation of an application to the court, but also at the subsequent stages of the process. In the necessary cases, the judge based on legally significant circumstances to be established for the correct permission of the claimed claim should offer to those involved in the case, submit additional evidence with the rules on their relativeness and admissibility (Article 59, 60 GPC). If the provision of evidence for the parties and other persons participating in the case is difficult, the court for their petition is obliged to assist in collecting and exploring evidence (Article 57 of the Code of Civil Procedure).
We must not forget to clarify the parties the right to conclude a settlement agreement and to appeal to the resolution of the dispute into the arbitration court, which entails a faster resolution of the dispute, reduction judicial expenditures sides.
The settlement agreement is achieved by mutual concessions and compromises. This, an important role belongs to the judge, designed not only to explain in detail the consequences of the conclusion of the settlement agreement, but also to pay attention to the moral, the ethical aspects of the conclusion of such an agreement, as a result of which the parties often restore and retain good relations. In particular, in a section of a residential building, the parties remain their neighbors for which the nature of future relationships is not indifferent. This contributes to the fact that the parties sought to achieve an agreement, adopted by separate probable rights.
Particularly carefully, the judge should be approached by the consideration of issues related to the adoption of claims, as in practice, in practice, errors are often allowed, entailing adverse effects. Such measures are permissible only when the failure to ensure the provision of the claim may make it difficult or to make the execution of the decision. Therefore, in definition, you need to motivate the adoption of interim measures, their appearance. Most often in judicial practice, this type of security measures is applied as the overlay of arrest on cash or the property of the defendant. It should be borne here that it is impossible to impose arrest on all the accounts of the defendant, especially the organization, as this may entail the unreasonable suspension of the organization's activities and, accordingly, substantial losses. The arrest should be made only on cash in the amount not exceeding the amount of the claim. When applied to real estate in the form of a ban, any transactions with this property should not forget to send a copy of the definition into the appropriate authority state registration Rights to real estate, to make a record of the restriction of ownership of the relevant property.
And it is completely unacceptable in order to ensure a claim to prohibit or suspend the activities of legal entities, conducting them by the management bodies of meetings and meetings (general meetings of shareholders, meetings of the Board of Directors, Board of Economic Society, Congresses and Conferences of Political Parties and Public Associations, etc.). In particular, the Plenum of the Supreme Court of the Russian Federation in the Resolution of October 10, 2001. N 12 "On the question arising from the application of the Federal Law" On joint stock companiesah "directly indicated that the judge or court is not entitled to prohibit the general meeting of shareholders, since this is contrary to Article 31 of the Constitution of the Russian Federation, guaranteeing citizens of the Russian Federation the right to gather peacefully, without weapons, to conduct meetings and demonstrations, processions and picketing, as well as violates the right to shareholders not appeal to solutions to the management bodies of the joint stock company, to participate in general meeting shareholders provided to them Federal law "On joint-stock societies."
In the decision of November 20, 2003. N 17 "On some issues arising in judicial practice when considering cases of labor disputes with the participation of joint-stock companies, other economic partnerships and societies" Plenum of the Supreme Court of the Russian Federation clarified issues related to the application of security measures for challenging organizations, members of collegial executive executive Organizations ( general Directors Joint-stock companies, other economic partnerships and societies, etc.), as well as members of the Board of Directors (Supervisory Boards), which entered into the organizations labor contracts, solutions of authorized bodies of organizations or owners of the property of organizations or authorized by the owners of individuals (bodies) on the release of them from their posts.
Plenum pointed to the inadmissibility of suspending the court of a disputed decision before the court decision was made on the basis of the decision of the court on the basis of Article 254 of the Code of Civil Procedure, since the legal relations arising according to these cases are not publicly legal and there are disputes on the right, which in accordance with Part 3 of Art. 247 GPCs should be considered and resolved in lawsuage. In the production process, the judge does not have the right as a measure to ensure the claim to suspend the contested decision on the release of the plaintiff from work and oblige the defendant, as well as other persons, do not repair obstacles to the plaintiff in fulfilling their former duties, since ensuring the claim by force of Article 139 The CCP is allowed if the failure to ensure the action of the claim will make it difficult or make it impossible to fulfill the court decision, while there are no such circumstances in these cases.
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From the book of the authorQuestion 255. Production in the arbitration court of first instance on cases arising from administrative and other public relations (categories of cases, features of their consideration). Cases arising from administrative and other public legal relations considered
Ministry of Internal Affairs of the Russian Federation
Saratov Law Institute
Department of Civil Law Disciplines
Discipline Civil Process
ESSAY
on the topic: "Production in the court of first instance"
Prepared:
Adjunct Department of CRPD
k.Yu.N., Associate Professor
militia Lieutenant
Monok P.D.
Saratov - 2008.
Literature:
I. Main.
2. Civil Process: Tutorial / Tube. ed. V.V. Bright. M.: Volkers Clever, 2005. 640 p.
3. Civil process: Textbook for universities / ed. MK Threushnikova. M.: OJSC "Publishing House" Gorodets ", 2007.
4. Dehtereva L.P. Civil Process: Tutorial. M.: Forum: Infra-M, 2005. 176 p.
5. Amented comment To the Civil Procedure Code of the Russian Federation / Ed. P.V. Kraschinnikova. M.: Statute, 2005. 861 p.
II. Additional.
1. Resolution of the Plenum of the Supreme Court of the Russian Federation dated 14.04.1988 No. 2 "On the preparation of civil cases for the court proceedings" text ed. From 21.12.1993 published in the publication Collection of Decisions of the Plenum of the Supreme Court of the Russian Federation 1961 - 1993 // M.: Legal Literature, 1994.
2. Resolution of the Plenum of the Supreme Court of the Russian Federation of 27.05.1998 No. 10 "On the application by the courts of legislation in resolving disputes related to the education of children" (ed. From 06.02.2007) // Bulletin of the Supreme Court of the Russian Federation. 1998. No. 7.
3. Resolution of the Plenum of the Supreme Court of the Russian Federation dated December 19, 2003 No. 23 "On the court decision" // Bulletin of the Supreme Court of the Russian Federation. 2004. No. 2.
4. Features of the consideration and permission of certain categories of civil cases. The statement of claim / ed. IK Piskarev. M.: "Publishing House Gorodets", 2005.
5. Terekhova L.A. Revision by the court of first instance of its own resolutions // Arbitration and civil proceedings. 2005. No. 1. P. 20-24.
Introduction
The trial in the court of first instance is the main stage in the civil procedure. It is here that the justice of civil matters is actually carried out, the goals and objectives of the proceedings are achieved. The trial is considered and the civil case is being resolved on the merits.
Considering the case, the court of first instance should clearly understand the essence of the claims of the plaintiff and the objections of the defendant, directly investigate the evidence, to establish the actual circumstances of the case, find out the rights and obligations of the parties protected by the law of the applicants' interests.
The stage of the trial is completed, as a rule, by making a decision on behalf of the Russian Federation. Allowing the case, the court is obliged to make a legitimate and reasonable judicial decision, protecting the rights and protected by law the interests of citizens, legal entities.
Question 1. Essence, value and structure of the stage of the trial .
The trial is an independent stage of the civil procedure, which consists in legal relations and the activities of its participants in the decisive role of the court of first instance for consideration and the permitting of civil matters on the merits.
The value of the trial stage is determined by the fact that in it:
1) Justice is carried out. On the basis of a direct study of evidence and establishing the actual circumstances of the case, the court solves the tasks of civil proceedings, consisting in the right and rapid consideration and resolution of civil cases (Art. 2 Code of Civil Procedure of the Russian Federation);
2) the principles of civil proceedings are most bright and consistently implemented: the legality, independence of judges, equality of the parties, competition, publicity and others;
3) the court makes a legitimate and reasonable court decision that protects the rights and protected interests of citizens and legal entities;
4) The goals delivered by legislation to civil proceedings are achieved:
a) protection (protection) of state and public interests, rights and freedoms of citizens;
b) raising citizens in the spirit of respect for the laws;
c) strengthening legality;
d) warning offenses.
With all the socio-legal significance of the stage of the trial, the underestimation of other stages of civil proceedings is invalid, since they are all elements of a single civil process.
The proceedings are based on its general conditions.
General conditions of trial - legal Statescharacterizing the procedure for consideration and resolving civil affairs. These should, in our opinion, attribute:
1) the immediacy of the trial. The court of first instance in the consideration of the case is obliged to directly investigate evidence in the case: to hear the explanations of the persons participating in the case, testimony of witnesses, the conclusion of experts, to familiarize themselves with written evidence, to inspect the physical evidence;
2) the perception of the trial. The proceedings in court occurs verbally, that is, in the form of staging;
3) the continuity of the trial. The court session for each case occurs continuously, besides the time appointed to relax. Before making a decision on the case or before the deposits, the court is not entitled to consider other civil cases.
4) invariance of the court. When considering the case, the replacement of judges is not allowed. In case of replacing one of the judges in the process of proceedings, it must be produced from the very beginning;
5) The leadership role of the court (presiding). He directs the court hearing, providing full, comprehensive and objective clarification of all the circumstances of the case, the rights and obligations of the parties, the educational impact trial And eliminating from the trial, everything is not related to the case under consideration. In case of objection to any of the participants in the process against the actions of the presiding party, these objections are recorded in the minutes of the court session.
6) the rituit of the trial. At the entrance of judges at the meeting room, all those present in the hall stand up. Court decision All people in the hall listened to standing standing. The participants of the process turn to the court and give their explanations and readings standing. The retreat from this rule may be allowed with the permission of the presiding;
7) unconditional compliance with the order in the courtroom. All civilian participants and citizens who are in the courtroom are obliged to comply with the order and unquestionably obey the appropriate regulations of the presiding. A person who breaks the order during the proceedings of the case, presiding on behalf of the Court makes a warning, and repeated violation The procedure for the participants in the process can be removed from the courtroom to determine the court, and other persons - by order of the presiding party. The judge of the court of general jurisdiction may also be based on the definition of persons who violate the order at the court session, a fine of up to ten minimum wages. With a massive violation of the order by citizens present at the proceedings of the case, the Court can be removed from the meeting room of all citizens who do not participate in the case, postpone the proceedings of the case. In addition, in accordance with the Law of the Russian Federation "On liability for disrespect for the court", administrative punishment may apply to such persons;
8) Strict compliance with the court of procedural law, since its instructions concern, not only the creatures and forms, but also the procedures and sequences of major judicial actions caused by the internal logic and the need to ensure the comprehensiveness, completeness and objectivity of the trial.
The procedure for conducting the court session is governed by the head of 15 GPK (Article 154-193 of the Code of Civil Procedure of the Russian Federation) and the resolutions of the Plenum of the Sun.
The procedure for judicial proceedings determined by law remains with the sole consideration of the case of the judge and when considering the case in collegial composition.
Features of the trial:
A) the sequence and interconnectedness of the court sessions;
B) leadership of all course of the court session by the court;
C) the responsibility of those involved in the case, for violation of the procedure for conducting the court session;
D) making judicial definitions on the principal, significant issues of the court session;
E) manifestation of all principles of the civil procedure;
(E) Compulsory conduct of the minutes of the court session.
The trial in the civil procedure consists of the following structural parts:
1) the preparatory part of the trial;
2) studies of the circumstances of the case (consideration of the case on the merits);
3) the judicial debate and the conclusion of the prosecutor;
4) submission and announcement of the court decision.
Conclusion on the first question.
The stage of the trial in the court of first instance is a complex, comprehensive phenomenon. It combines the action of most principles of civil procedural law. At the same time, this stage can be divided into four interdependent interconnected parts: preparatory, consideration of the case on the merits, judicial debate, and the announcement of the court decision.
Question 2. Procedure of the trial
Cases are dealt with open court, orally and with the constant composition of judges.
The leadership of the court session is performed presidential. IN district courts This is the Chairman of the Court or the Federal Judge, in meetings of other courts - the chairman, his deputy or judge.
The trial begins with the preparatory part.
The preparatory part of the trial is its initial part, which consists in committing legally significant actions of the participants of the Civil Procedure under the leadership of the court, which are aimed at creating conditions that ensure the effectiveness of the evidence research, the establishment of the actual circumstances of the case, the protection of the interests of persons participating in the case.
Chairmanship provides complete, comprehensive and objective clarification of all the circumstances of the case, the educational impact of the trial and elimination of the elements of the elements that are not related to the case under consideration. He also introduces all persons participating in the case with their rights and responsibilities.
In the event of an objection, some of the participants in the process, about the commission of any actions by the court or other persons, it is submitted to the minutes of the court session.
The preparatory part of the trial includes the system of the following consistently conducted procedural actions.
1. Opening the presidency of the court session, the announcement of the case to be heard (Art. 160 Code of Civil Procedure of the Russian Federation).
2. Report of the Secretary by the court on the appearance of the participants in the process (Art. 161 Code of Civil Procedure of the Russian Federation). The secretary of the court session reports the appearance of persons, whether the agendas were presented and what information about the reasons for their non-appearance are available.
3. Establishing the presiding personality of the proceeding participants in the process (Article 161 of the Code of Civil Procedure of the Russian Federation). Each of the appeared citizens find out the main installation (personographic) data (surname, name, patronymic, year and place of birth, place of residence and work, etc.). The expert and translator clarifies the level of competence. W. officer And the representative is determined by the amount of authority.
4. Explanation of the translator (with participation in the case) of rights, responsibilities and preventing it criminal responsibility For knowingly incorrect translation (art. 307 of the Criminal Code). In the event of evasion of the translator from the appearance to the court or from the execution of his duties, it may be imposed a fine in the amount of from ten minimum wages (Art. 162 GPC).
5. Removing witnesses from the courtroom (Art. 163 of the Code of Civil Procedure). This procedural effect is carried out so that the interrogated witnesses do not communicate with unacceptable and have no psychological influence on them. The purpose of this action is to ensure the accuracy of the testimony of witnesses.
6. Announcement of the Court and Clarification of the Relief Rights (Article 164 of the Code of Civil Procedure). The chairmanship announces the composition of the court, reports who participates as a prosecutor, an expert, translator, the secretary of the court session, and explains to those involved in the case, their right to declare taps.
Disposal - the Institute of Legislation, the norms of which provide for grounds for eliminating certain participants in the process of consideration and the permission of civil affairs. In accordance with Art. 17-18 Code of Civil Procedure of the Russian Federation The list of persons to be dispersed is exhaustive. Therefore, in the civil process, the reflection is subject to: a) the judges; b) the prosecutor; c) the secretary of the court session; d) expert; e) specialist; e) translators.
The legislator gave the right to decorate the assignment to persons participating in the case, and their representatives. At the Institute of Disposal Definitions are the provisions formulated in Art. 17-19 Code of Civil Procedure of the Russian Federation indicating the circumstances whose presence allows you to declare the judge. The judge (or the meeting) cannot participate in the case if:
1) with the previous consideration of the case, he participated as an expert, translator, representative, prosecutor, a court session or a witness;
2) He is a relative of those involved in the case, or their representatives;
3) He is personally, directly or indirectly interested in the outcome of the case or there are other circumstances that doubt its impartiality.
The judge who participated in the consideration of the case cannot participate in the consideration of this case in court of another instance. At the same time, the judge who participated in the consideration of the case in any instance cannot participate in repeated consideration Cases in the same instance, except cases of consideration of cases of newly discovered circumstances. The grounds for the discharge specified in Art. 17 Code of Civil Procedure of the Russian Federation, also apply to the prosecutor, an expert, translator and the secretary of the court session. For an expert, in addition, special foundations of its discharge are provided.
According to Art. 18 Code of Civil Procedure RF expert cannot participate in the consideration of the case if:
1) its service or other dependence will be established at the time of the proceedings of the case or in the past of persons participating in the case, or their representatives;
2) he made a revision, the materials of which served as the basis or reason for appealing to the court or are used in the case;
3) It will be discovered incompetence.
The participation of the prosecutor, an expert, translator or the secretary of the court session at the previous consideration of this case in the same quality is not the basis for their discharge. In the presence of discussed circumstances (grounds), the judge, the attacker, the prosecutor, an expert, translator, the secretary of the court hearing is obliged to declare a self-degree. The self-discharge must be motivated and declared before the reason for the consideration of the case on the merits. The later statement about the self-discharge and on the discharge is allowed only in cases where their foundations became known after the start of the consideration of the case (Article 19 of the Code of Civil Procedure of the Russian Federation). In accordance with Art. 20 Code of Civil Procedure of the Russian Federation, with a declaration, the court should listen to the opinion of the persons participating in the case, as well as to hear the explanations of the person who declared the discharge if he wishes to give explanations.
The question of the discharge of judges or the assession of the collegial consideration of the case is permitted by the composition of the court in the absence of the assigned one. With an equal number of votes submitted for the discharge and against the outlet, the court member is considered to be allocated. The discharge declared to several judges or the entire composition of the court is permitted by the same court in full force by a simple majority of votes.
A discharge declared by the judge with the sole consideration of the case is permitted by the same judge.
The question of the discharge of other participants in the process is permitted by the court considering the case.
7. Explanation of persons participating in the case and representatives of their rights and obligations (Article 165 of the Code of Civil Procedure).
8. Permission by the court of applications and petitions of persons participating in the case (Art. 166 of the Code of Civil Procedure). They are permitted by the court by making a definition after hearing the opinions of other persons participating in the case.
9. Resolution of the issue of the application of norms regulating the consequences of non-appearance of persons at the court session.
One of the negative consequences of the non-appearance of the participants in the process is the deposition of a trial. The deposition of a trial is to delay the dispute resolution in essence with the appointment of a certain date of the next meeting in the case.
The consequences of the non-appearance of persons participating in the case are determined primarily by respect or disrespectfulness of the consequences.
According to Art. 167 GPCs in the non-appearance of persons involved in the case, for whom there are no information about their notice, the proceedings of the case is postponed.
In case of non-appearance of persons participating in the case, properly notified of the time and place of the court session, the trial of the case is postponed if the causes of the failure to appear are respectful. At the same time, the parties are obliged to notify the court on the causes of the non-appearance and to provide evidence of respect for these reasons.
The court has the right to consider the case in the absence of the defendant if:
Information about the causes of the failure is absent;
The causes of the non-appearance are recognized by the court disrespect;
The defendant is intentionally (consciously) delays the proceedings.
The parties have the right to ask the court about considering the case in their absence and send a copy of the decision of the court. True, the court can recognize the participation of the parties in the process of mandatory, taking into account the circumstances of the case.
The failure to appear the representative of the person participating in the case notified of the time and place of the trial is not an obstacle to the consideration of the case.
The consequences of the failure of a witness, the expert is determined by the possibility or inability to consider the case. Having heard the opinion of those involved in the case, and the conclusion of the prosecutor, if he participates in the case, the court in the first case makes a definition of the continuation of the trial, and in the second - on the deposition of a trial. At the same time, if an induced witness or an expert did not come to court for reasons recognized disrespectful, the court exposes it a fine in the amount of up to ten minimum wages, and with a non-emergency call - forced drive (Article 168 of the Code of Civil Procedure of the Russian Federation).
Thus, the deposition of the proceedings of the case is allowed in cases established by law: if it is impossible to consider the case in connection with the non-appearance of the participants in the process to court, presenting a counterclaim, the need for additional evidence to bring to participate in other persons, the commission of other procedural actions (Article 169 Code of Civil Procedure of the Russian Federation).
10. Explanation of the rights and obligations of the expert and specialist and the prevention of the expert about the responsibility for refusing or evasion from the prison or for the gift of the deliberately false conclusion (Art. 171 Code of Civil Procedure of the Russian Federation).
11. Interrogation of witnesses when depositing the proceedings of the case (Art. 170 Code of Civil Procedure of the Russian Federation). When deploying the proceedings of the case, the court has the right to interrogate the witnesses who have appeared, provided that there are parties at the court hearing. The secondary challenge of these witnesses in a new court session is allowed only in cases of necessity.
When deciding on the continuation of the trial, the case goes to the next part of it.
The beginning of the consideration of the case on the merits (Article 172 of the Code of Civil Procedure of the Russian Federation) is the main part of the trial, which consists in the activities of the persons participating in the case by the decisive role of the court for the study of evidence in order to establish the actual circumstances of the case and resolving the dispute on the merits.
Consideration of the case on the merits begins the report of the case by the presiding or as a guide. Then the presiding story finds out whether the plaintiff supports his claims, whether the defendant recognizes the claimant's demands and whether the parties do not want to finish the world agreement.
In accordance with Art. 173 Code of Civil Procedure of the statement of the plaintiff on refusal of a claim, the parties to the defendant's claim or the conditions of the world agreement are recorded in the minutes of the court session and are signed by the plaintiff, respectively, the defendant or both parties.
If the refusal of the plaintiff is from the claim, recognizing the claim by the defendant or world Agreement The parties are expressed in written statements, these statements are attached to the case, as indicated in the minutes of the court session.
On the adoption of the reference of the claimant from the claim or approval of the world agreement of the parties, the court makes a definition that simultaneously stops the proceedings. The definitions should indicate the conditions approved by the Justice Agreement.
When recognizing as a defendant, the claim and the adoption of his court makes a decision to meet the stated requirements.
In the event of an invisitution by the court, the recognition of the claim by the defendant or the unpertressing of the World Agreement the court makes a definition about this and continues the consideration of the case on the merits.
According to Art. 174 Code of Civil Procedure of the Russian Federation After the report of the case, the court hears explanations of the plaintiff and participating on his side of a third party, the defendant and participating on his side of a third party, and then other persons participating in the case. The prosecutor, representatives of state bodies, local governments, organizations, citizens who addressed the court for the protection of violated or disputed rights, freedoms and protected interests of others, give explanations first. Persons participating in the case are entitled to ask each other questions. The judges have the right to ask questions to these persons at any time of their performances.
After that, the Court establishes the procedure for the study of other evidence, taking into account the opinion of the Parties.
The study of other evidence is carried out by interrogation of witnesses consisting of a "free story" and "answers to the questions issued" (Art. 177-178 Code of Civil Procedure of the Russian Federation); announcers and research of correspondence and telephone communications of citizens (Art. 182 Code of Civil Procedure of the Russian Federation); studies of written evidence (Art. 181 Code of Civil Procedure of the Russian Federation); studies of material evidence (Art. 183 of the Code of Civil Procedure of the Russian Federation) or the announcement of the inspection protocols; inspection at the site of finding written and physical evidence (Art. 184 Code of Civil Procedure of the Russian Federation); Announcement of the conclusion of an expert and its interrogation in order to obtain clarification and additions (Art. 187 of the Code of Civil Procedure).
The judicial debate and the conclusion of the prosecutor represent an independent part of the trial, which also includes the replicas of the participants in the judicial debate.
Judicial debate is the performances of persons participating in the case, and representatives in which the analysis of the evidence has been analyzed, judgments are expressed to establish the circumstances of the case and the decision is proposed.
The speeches of the debate participants usually set out:
Legal analysis of evidence;
Established on the basis of the evidence of the actual circumstances of the case;
Analysis of the norms of financial law;
The validity of the claimed claims and objections to the claim;
Judgments to resolve the dispute on the merits.
The strict sequence of speech in the debate is defined by Art. 190 Code of Civil Procedure of the Russian Federation. This sequence can be represented as follows:
1) the plaintiff and his representative;
2) the third face on the side of the plaintiff and his representative;
3) the defendant and his representative;
4) the third person on the side of the defendant and his representative;
5) The third person who has declared independent requirements for the subject of the dispute, and its representative.
It should be borne in mind that the prosecutor, representatives of state bodies, local governments, organizations, citizens who appealed to the court for protecting the violated or disputed rights, freedoms and the laws protected by the interests of others act in judicial debate. Authorized government bodies attracted by the court to participate in the process or entered into business on their own initiative perform in the debate after the parties and third parties.
The conclusion of the prosecutor in the case - the presentation of the prosecutor is essentially the matter as a whole. This conclusion is analyzed not only the course and results of the consideration of the case, but also the content of the speeches of the debate.
The participants in the judicial debate are entitled to the replica (Art. 186 of the Code of Civil Procedure). The right of the last replica is always the defendant and his representative.
Replica - a brief speech by the debate's participant in response, as a rule, on a part of the procedural enemy's performance.
Legislation The sequence of speeches as replicas is not established. Therefore, the courts establish the sequence of performances with remarks, taking into account the provisions of Art. 190 Code of Civil Procedure of the Russian Federation.
The next part of the trial is to make the declaration (proclamation) of the court decision.
The decision and announcement of the decision - the activities of the court to resolve civil matters on the merits and bring the content of the court decision to the attention of interested parties.
The court makes a decision by the name of the Russian Federation (Art. 194 Code of Civil Procedure of the Russian Federation).
The court decision is made by the court in a deliberative (separate) room after the end of the consideration of the case on the merits. During the meeting of the judges and the decision in the deliberative room, only judges are part of the court considering the case. The presence of other persons in the deliberate room is not allowed. Judges cannot disclose judgments that have occurred during the meeting.
The decision-making in the collegial composition of the court is carried out by discussing the issues and formulate them to vote. At the same time, the Court basics its decision only on the evidence that was investigated at the court session.
In the advisory room, the judge:
Evaluate the evidence investigated at the court session;
Determine which circumstances of the case are established, and which are not established;
Determine what evidence established and rejected circumstances are confirmed;
Establish the norms of material law to be and not applicable;
Define the rights and obligations of persons involved in the material and legal relationship;
Decide on the essence of the satisfaction of the claims or the refusal to satisfy them in whole or in part;
All resolve issues related to the recovery of court costs and their distribution, the time execution time, the fate of material evidence, etc. (Art. 194 of the Code of Civil Procedure).
All issues are permitted by the court by a majority vote. None of the judges have the right to refrain from discussion and voting. Presiding votes the last. The judge remaining when discussing and voting issues in the minority can be set forth in writing His special opinion that comes to the case.
The court decision is posted in writing by the presiding or one of the judges and is signed by all the judges who participated in decision making, including the judge that remains in a special opinion. Corrections in the decision must be specified in the decision before signatures of judges.
According to the affairs of a special complexity, making a motivated complete solution can be postponed for a period of no more than five days, but the operative part of the decision should be announced in the same meeting, which ended the proceedings of the case (Article 199 of the Code of Civil Procedure). In addition to the operative part of the decision, the court displays its introductory part and at the same time should declare when interested participants in the process can familiarize themselves with the descriptive and motivation parts of the court decision.
The court decision in all cases is proclaimed publicly, that is, in open court.
Conclusion on the second issue. The procedure of the trial is quite detailed by the current legislation. In fact, each action of any of the subjects is strictly regulated. This is due to the fact that it was at this stage that the circumstances of the case are investigated and on the basis of this court makes a decision, and the assumption of any violations of the legislation at this stage may entail the unauthority of the court order.
Question 3. Forms of temporary stopping trial
A naturally determined progressive movement of civil matters is sometimes violated by the emergence of circumstances that were not taken into account or could not be taken into account by the participants in the process during the initiation of the case and its preparation for the court proceedings. The presence of these circumstances entails a temporary stop of the trial. The current legislation provides for three forms of the temporary stop of the process: a break in the trial, the deposition of the proceedings and the suspension of the proceedings. The first two forms were considered by us when the content of the principle ( common condition) trial and preparatory part of the court session. Therefore, we will make an emphasis when considering these forms of a temporary stop of the trial at the Institute for the Suspension of the proceedings.
The suspension of the proceedings in the case is a temporary termination of the commission of procedural actions on the case for an indefinite period of circumstances independent of the court and the parties that impede the further movement of the case.
The current legislation provides for the mandatory and optional (at the discretion of the court) suspension of the proceedings.
In accordance with Art. 214 GPC proceedings are suspended in obligatory In cases:
1) the death of a citizen if the controversial relationship allows the succession, or the termination of existence legal entitywho were the party in the case;
2) loss of the body of legal capacity;
3) the residence of the defendant in the current part of the Armed Forces of the Russian Federation or the claimant's request, which is in the current part of the Armed Forces of the Russian Federation;
4) the impossibility of considering this case to the permission of another case considered in civil, criminal or administrative order (Art. 214 GPK).
According to Art. 215. CGP court (or judge) has the right to suspend the proceedings in cases:
1) the part of the party as part of the Armed Forces of the Russian Federation on the actual urgent military service or bring it to carry out any state duty;
2) finding a party in a long service business trip;
3) finding a party in a medical institution or if it has a disease that prevents the appearance of the appearance and confirmed by a certificate of a medical institution;
4) the search for the defendant in situations specified in Art. 112 GPK;
5) appointment by the court examination.
The proceedings are renewed after the elimination of the circumstances (grounds), which aroused its suspension on the application of persons participating in the case, or at the initiative of the court (Article 218 of the Code of Civil Procedure). In this regard, Art. 216 GPC set the time for the suspension of the proceedings. In particular, in the event of the death of a citizen or loss by the party of capacity, the case is suspended until determining the successor of the left-handed person or appointment to the incapacitated person of the representative; In case of staying the plaintiff and the defendant in the current part of the Armed Forces of the Russian Federation, in the actual military service, in a long business trip, etc. - before the termination of the circumstances listed; In cases of impossibility of consideration of the case to the permit of the case in a more detail - before the entry into force of the relevant acts adopted in a different order.
The suspension of the proceedings and its renewal is issued by making definitions.
Conclusion on the third question. Thus, leaving the application without consideration is the end of the proceedings in the case without making a decision that does not prevent the possibility of secondary appeal to court with a identical statement. Judicial decision is an act of executive judicial authority - courts in which he is based on the established legal facts In accordance with the norms of material and procedural legislation, the civil case is essentially a civil case.
Question 4. The end of the proceedings in the case without making a court decision
As a rule, consideration of civil matters is completed by the submission of a court decision. However, when considering disputes, circumstances may be established, the presence of which eliminates the further continuation of civil proceedings. In this regard, the legislation provides for another end of civil affairs.
Depending on the nature of the identified circumstances and legal consequences The end of the proceedings in the case without making a decision is provided by law in two forms:
1) termination of the proceedings;
2) Leaving the application without consideration.
Termination of the proceedings - the form of the end of the court's activities without making a decision in connection with the establishment of circumstances pointing to the absence of an interested party to law judicial protection or the cessation of a dispute after the initiation of the case.
In accordance with Art. 219 GPC Proceedings terminated if:
1) the case is not subject to consideration and permission in the order of civil proceedings;
2) the interested person who applied to the court is not complied with the procedure for the preliminary extrajudicial resolution of the dispute and the possibility of applying this order is lost;
3) there is a focused on the legitimate force issued on the dispute between the same parties, on the same subject and on the same basis, the court's decision or the court decision on making the reference of the claimant from the claim or approval of the settlement of the parties;
4) the plaintiff refused the claim;
5) the parties concluded a settlement agreement and it was approved by the court;
6) the decision of a comrade court, adopted within its competence, on the dispute between the same parties, on the same subject and on the same basis;
7) there is an agreement between the Parties on the transfer of this dispute to the permission of the Arbitration Court;
8) After the death of a citizen who was one of the parties in the case, in which the controversial relationship does not allow the succession.
In the case of termination of the proceedings in the case, the secondary appeal to the court on the dispute between the same parties, in the same subject and on the same grounds is not allowed (art. 220 GPC).
The circumstances listed in Art. 219 GPK, can be divided into two groups. The first of them constitute the basis of the termination of the case specified in paragraph 1-3, 6 and 7 of Art. 219 GPK. They indicate the absence of an interested party the right to appeal to the court of general jurisdiction in this case, that is, about the absence of prerequisites for the presentation of the claim. When establishing these circumstances, the judge must refuse to accept the statement in the initiation of civil affairs. Other circumstances arise after the initiation of the case. In these cases, the dispute becomes free and eliminated in connection with the refusal of the plaintiff from the claim, reconciliation of the parties or the onset of death of one of the parties.
The cessation of production is issued by the definition in which questions may be resolved on the distribution of court costs, on the return of state duty (Art. 220 GPC).
Thus, the termination of the proceedings is the end of the court's activities on the consideration of the case in connection with the establishment of the absence of the interested party the right to judicial protection or due to the termination of the dispute after the initiation of the case.
Leaving the application without consideration is the form of the end of the proceedings without making a decision in connection with the establishment of circumstances pointing to the possibility of secondary appeal to the court with a identity statement, but preventing the consideration of the case on the merits under these conditions.
In accordance with Art. 221 GPK Judge leaves a statement without considering if:
1) interested persons who appealed to the court, not complyed with the procedure for preliminary extrajudicial permissions of the case and the possibility of applying this order is not lost;
2) the application is filed incapable;
3) the application on behalf of the interested person is filed by a person who does not have authority to conduct business;
4) In the production of the same or another court, there is a deal on the dispute between the same parties, the same subject and on the same basis;
5) the parties who did not seek about the proceedings of the case in their absence did not appear without good reasons on the secondary call, and the court does not consider it possible to resolve the case on materials available in the case;
6) The plaintiff who did not seek about the proceedings of the case in his absence, did not appear on the court on the secondary call, and the defendant does not require the proceedings of the case on the merits.
In addition, Art. 246 GPC provides for a special basis for leaving the application without consideration: when, when considering special production cases arises subordinate court Argument about the right. In this case, interested parties explain the right to present a lawsuit on the general basis.
The decision to leave the application without consideration is issued by the definition in which it is indicated how to eliminate the shortcomings that prevent the consideration of the case. After eliminating the conditions that served as the basis for leaving the application without considering, the interested person has the right to apply to the court with a statement in general (Art. 222 of the Code of Civil Procedure).
Thus, leaving the application without consideration is the end of the proceedings in the case without making a decision that does not prevent the possibility of secondary appeal to court with a identical statement.
Conclusion on the fourth issue. Thus, leaving the application without consideration is the end of the proceedings in the case without making a decision that does not prevent the possibility of secondary appeal to court with a identical statement. A court decision is an act of administering judicial authority, the court in which he on the basis of established legal facts in accordance with the norms of material and procedural legislation permits a civil case on the merits.
Question 5. Protocol of the court session
In accordance with Art. 266 GPC at the court hearing, as well as when performing certain procedural actions, a protocol is necessarily compiled out of the court session.
The minutes of the court session is a procedural document containing information on the procedural actions committed by the participants in the implementation of individual intermediate solutions provided for by the law and the court.
The protocol acts as an obligatory element of the procedural form and plays an important role in civil proceedings, which repeatedly indicated Supreme Court RF.
The value of the trial protocol is determined by its evidentiary force. According to this document, higher courts verify the fulfillment of the requirements of the law when considering and permitting the case by the court of first instance and the compliance of the final decision of the evidence collected and studied in the trial. Therefore, entries in the protocol must be made in the sequence in which procedural actions were made and intermediate decisions were taken from the moment the hearing began to decide on the merits. Reducing words in the protocol is not allowed. Explanations of the parties, third parties, testimony of witnesses, explaining the sentence of the expert are recorded from the first person.
The minutes of the court session or a separate procedural action committed out of the meeting should reflect all the essential moments of the proceedings of the case in general or the commission of a separate procedural action.
The procedure for compiling the protocol, its content and form are sufficiently strictly regulated by law (Art. 227 of the Code of Civil Procedure).
The trial of the court session is indicated:
1) year, month, number and place of the court session;
2) the start and end time of the court session;
3) the name of the court considering the case, the composition of the court and the name of the secretary of the court session;
4) the name of the case;
5) information about the appearance of persons participating in the case, representatives, witnesses, experts, translators;
6) information on clarification of persons participating in the case, and representatives of their procedural rights and obligations;
7) the orders of the presiding and definition made by the court without removal in the advisory room;
8) statements of persons participating in the case and representatives;
9) explanations of persons participating in the case, and representatives, testimony of witnesses, oral explanations by experts of their conclusions, data inspection data of real and written evidence;
10) the conclusions of government bodies;
12) information about the announcement of definitions and solutions;
13) information on clarification of the content of the decision, the order and the deadline for its appeal.
When studying the content of the trial of the court session, students need to be borne in mind that the list of circumstances to be fixed in the minutes of the court session is exemplary, and not exhaustive.
The procedure for compiling a trial of the court session is regulated by Art. 228 GPK.
The minutes of the court session should be made and signing later after the meeting of the day, as well as the protocol of a separate procedural action.
The minutes of the court session of general jurisdiction signed by the presiding and secretary.
Persons participating in the case and representatives are entitled to get acquainted with the trial of the court session within three days from the date of its signing and to submit written comments on the completeness and correctness of its preparation (Art. 229 of the Code of Civil Procedure).
Remarks to the protocol considers the presiding and in the case of consent with them certifying their correctness. According to cases considered by the judge alone, comments on the protocol are considered by themselves as presiding.
Comments on the protocol must be considered within five days from the date of their submission (Art. 230 GPC).
Conclusion on the fifth question.
The trial of the court session is the main procedural document that contains the entire process of the trial, reflects the procedure for collecting and researching evidence, the sequence of the most significant procedural action.
Conclusion
The stage of the trial arises with the opening of the court session. It lasts long enough - before making a final decision on the case, or the definition of the termination of the proceedings, or the definition of leaving the application without consideration.
It is necessary to distinguish between two interrelated concepts - "trial" and "court sessions". The trial is the stage of a civil process that takes place in the form of a court session. When considering and resolving a specific dispute, the trial may occur in several court sessions. But the court session can be held not only for a trial, but also for consideration and permission of other procedural issues (for example, on issues of reducing the size of the imposed penalty, about ensuring the claim, etc.). But in any case, the trial occurs in the order that was considered in the lecture.
List of used literature
1. Civil Procedure Code of the Russian Federation dated November 14, 2002 No. 138-FZ (ed. From 05.12.2006) // Meeting of the legislation of the Russian Federation. 2002. No. 46. Art. 4532.
2. Abonin G. O. Group Iska. M.: Publisher Norm, 2003.
3. Civil Process: Textbook / Ed. MK Threushnikova. M.: LLC "Gorodets-Edition", 2003.
4. Civil Procedure Law: Textbook / Ed. M.S. Shakaryan. M.: Prospekt, 2004. 592 p.
5. Commentary to the Civil Procedure Code of the Russian Federation (article) / Ed. G.A. Zilina. M.: TK Velby, 2003.
For me, it does not matter on whose side strength; important then on whose side right
Victor Hugo
Stages of consideration of the case in court
Any business in court is traditionally considered in stages or consistently several instances. In general, 4 instances are distinguished that follow each other:
The movement of the case "by instances" or the transition of cases from one instance to another is carried out by appeal against the decisions taken in the case. Schematically, this process is represented by the Faculty Medical law In the material ", allowing the civil case on the merits (according to the rules of the Code of Civil Procedure of the Russian Federation)."
Several words should be said about applicable procedural laws on cases in which a medical organization can participate (other organization of health sector). The article "" The Faculty of Medical Law talked about the fact that cases involving organizations can be considered in different courts depending on the nature of the dispute and the circle of participants.
Today, different courts apply different procedural laws. Thus, the economic dispute with the participation of a medical or other organization will be considered in the Arbitration Court using the Rules of the Arbitration Procedure Code of the Russian Federation (hereinafter - the APC RF). Spore S. state body can be considered under the rules of the APC RF and according to the rules of the Code administrative production (hereinafter referred to as CAS RF). The case of an administrative offense will be considered with the application of the Code administrative offenses. The medical dispute with the patient falls under legal regulation Civil Procedure Code of the Russian Federation (hereinafter - Code of Civil Procedure of the Russian Federation). It is noteworthy that each of the categories of indicated cases passes through the same 4 instances, unless otherwise provided by the relevant procedural norms.
Since the real section is globally dedicated to the relationship between the medical organization and the patient (other organization of the health sector with clients, consumers, buyers), the entire following (in this article) and other (in the section "Judicial Cases") is based on the norms of the Code of Civil Procedure of the Russian Federation. The use of the CAS RF on disputes with the participation of medical and other organizations is considered by the Faculty of Medical Law in the section "".
The court of first instance considers the dispute between the medical organization and the patient essentially (we give this example as the main one). What does this mean? From a legal point of view, this means that in the court of first instance and medical organization and the patient really and actively protect their rights and legitimate interests: they provide evidence, justify the position of the case, their legitimacy and legality, object to each other, etc. Such protection, meanwhile, is not chaotic character, but on the contrary, the norms of civil procedural law are streamlined. The procedure for consideration of the case depends on the type of production in which the case is considered.
The current legislation of the Russian Federation allocates 3 main types of industries in the court of first instance:
- Ordering
- Claims, in which there are also correspondence production and simplified production
- Special production
Before acceptance and enacted the Codex administrative proceedings (CAS RF) Code of Civil Procedure of the Russian Federation regulated also the proceedings arising from public legal relations. At the moment, this chapter has lost strength, and cases arising from public relations, including with the participation of medical organizations, are considered by the rules of the CAS RF.
Claims
The court of first instance usually considers and allows medical disputes between patients and medical organizations (Between other organizations of the health sector and their customers, consumers, buyers) according to the rules of claim. This is the most common type of production, very detailed about which the Faculty of Medical Law tells in the article "
Judicial proceedings Includes:
1) production in the court of first instance, where criminal cases are considered on the merits with sentencing or decisions are made during pre-trial production in criminal matters (Section IX chapter 33-39 of the Code of Criminal Procedure and Section II Chapter 5 Part 2 of Art. 29 Code of Criminal Code of the Russian Federation) ;
2) production in court of the second instance (appellate and cassation), where the legality, validity and justice is checked not entered into legal force court decisions (section XIII chapter 43-45 of the Code of Criminal Procedure);
3) production in the supervisory instance, where the legality and validity of court decisions is checked, entered into legal force (Section XV Chapter 48 of the Code of Criminal Procedure).
Production in the court of first instance
Production in the court of first instance begins with general procedure for preparing for court session (Chapter 33 Code of Criminal Procedure). This stage is mandatory.
According to the criminal case, the judge can accept one of three solutions (Art. 227 of the Code of Criminal Procedure):
2) on the appointment of the preliminary hearing;
3) on the appointment of the court session.
The decision of the judge is issued resolution.
Deciding on the appointment of the court session, the judge decides issues related to the preparation for the consideration of the criminal case at the court hearing (Art. 231 of the Code of Criminal Procedure). At this stage of the process, the judge is solely, getting acquainted with the materials of the criminal case, finds out whether actual and legal reasons are in fact to consider it at the court hearing (Art. 228 of the Code of Criminal Procedure), and in case of such grounds, it makes the necessary preparatory actions for the court session Or prescribe a preliminary hearing.
At the request of the part or on its own initiative Judge in the presence of foundations provided for in Part 2 of Art. 229 Code of Criminal Procedure, appoints a preliminary hearing, where in accordance with Chapter 34 of the Code of Criminal Procedure of the Russian Federation with the participation of the parties solves a number of issues that ensure the legality of the trial. The main feature of the preliminary hearing is the procedure for consideration of the petition for the exclusion of evidence, recognition is invalid in connection with a violation of the procedural procedure for obtaining and consolidating this evidence and the decision to exclude it from among the evidence that this party is presented.
Unlike the preparation stage for the court hearing this stage not mandatory.
According to the results of the preliminary hearing, the judge takes one of the brief solutions provided by Art. 236 Code of Criminal Procedure:
1) On the direction of the criminal case on jurisdiction in the case provided for by Part 5 of Art. 236 Code of Criminal Procedure. The judge is entitled to take this decision if during the preliminary hearing the prosecutor has changed the prosecution that caused a change in the jurisdiction of the criminal case. At the same time, the judge is not entitled to take any other decisions in the case;
2) on the return of the criminal case to the prosecutor. This decision can be accepted when violations of the laws of the law are allowed in drawing up an indictment or indictment; When the accused was not awarded a copy of the indictment or indictment in violation of the rules of Part 4 of Art. 222 and part 3 Art. 226 of the Code of Criminal Procedure and others;
3) on the suspension of the criminal proceedings. Such a decision should contain facts that substantiate conclusions that the accused disappeared and the place of his stay is unknown or he suffers from severe illness if it is confirmed by medical conclusion;
4) on termination of the criminal case;
5) On the appointment of the court session. This decision is made on condition that:
a) the criminal case is tumped by this court;
b) in the presence of sufficient and permissible evidence of the case to consider it essentially in the court proceedings;
c) in the absence of circumstances
- Return of the case to the prosecutor, or
- suspension either
- Termination of the case.
6) on postponement of the court hearing in connection with the presence of a sentence that did not enter into legal force, which provides for the conditional condemnation of the person in respect of whom a criminal case was received, for a previously perfect crime.
The decision of the judge is issued resolution.
The most important stage In production, the court of first instance is the consideration and permission of the case on the merits (chapter 35-39 of the Code of Criminal Procedure). This stage is an mandatory.
Trial complete Reach:
1) an exclusive or indictment;
2) decisions on the termination of the criminal case;
3) decisions on the application of compulsory medical measures (chapter 51 of Art. 441-443 of the Code of Criminal Procedure).
In the Criminal Procedure of the Russian Federation for the first time provided special order judicial trial and the adoption of a court decision:
1) with the consent of the accused with charged by him (Section X, Chapter 40 of the Code of Criminal Procedure);
2) when concluding a pre-trial agreement on cooperation (Section X, Chapter 40-1 of the Code of Criminal Procedure).