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The unified procedural code is presented in the concept. Implementation of the Concept of the Unified Civil Procedure Code of the Russian Federation Implementation of the Concept of the Unified Civil Procedure Code of the Russian Federation

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05.11.2020

Ticket number 1.

System of Arbitration Courts of the Russian Federation

I. Supreme Court of the Russian Federation (College in Economic Disputes) (Moscow)

II. Arbitration courts of districts (10 (9 federal districts + Moscow District))

III. Appeals Arbitration Courts (21)

IV. Arbitration courts of subjects of the Russian Federation (85)

1- arbitration courts of constituent entities of the Russian Federation (republics, edges, regions, cities of the federal significance of Moscow and St. Petersburg, autonomous region and autonomous districts). The activities of the arbitration courts of the subjects of the Federation are mainly related to the permitting cases of first instance.

The work of arbitration courts of the subjects of the Federation of Studying and Generalization judicial practice, preparation of proposals for the improvement of laws and other regulatory acts, on the analysis of judicial statistics. The courts of this link of the system of arbitration courts are also entitled to appeal to Constitutional Court RF asking for the verification of the constitutionality of the law applied or subject to the case under consideration by them on the first or appeal instance.

2 - arbitration courts of districts who act on the judicial districts. In total, there are 21 arbitration courts in the Russian Federation. Arbitration appeals courts are intended to re-consider cases to verify the legality and validity of the judicial acts that have not entered into legal force arbitration courts Subjects of the Russian Federation for the first instance. They are also entitled to revise their judicial acts on newly discovered circumstances.

3- Federal District Arbitration Courts. They are the courts on the cassation verification of the legality of court decisions on cases considered by the lower courts at first instance and appeal. In the Russian Federation, ten federal district courts were formed, each of which extends its activities to certain regions of the country, consisting of the territories of several subjects of the Federation. The federal arbitrage district courts are also entitled to revise on the newly discovered circumstances accepted by them and judicial acts that have entered into legal force. Like the courts of subjects of the Federation, federal arbitration courts have the right to apply to the Constitutional Court of the Russian Federation with a request to verify the constitutionality of the law applied or subject to use in the case under consideration, to study and summarize judicial practice, prepare proposals for the improvement of laws and other regulations, analyze judicial statistics.



4. - Supreme Court of the Russian Federation became the only higher judicial authority According to civil, criminal, administrative and other cases, as well as to resolve economic disputes. The provisions on the jurisdiction of the work of the Armed Forces of the Russian Federation are excluded from Art. 27 Code of Civil Procedure of the Russian Federation. Instead, a reference to the Federal Constitutional Law of 05.02.2014 N 3-FCZ "On the Supreme Court of the Russian Federation" containing relevant norms is provided.

From the Constitution of the Russian Federation, references to the Russian Federation is excluded. Similar changes are made to other regulatory legal acts. Also from the Constitution of the Russian Federation, the mention of arbitration courts is excluded. In addition, in Art. 71 of the Constitution of the Russian Federation instead of civil-procedural, criminal procedure and arbitration procedural legislation Now we are talking about procedural legislation.

Functions to resolve economic disputes, previously underwrittening the Russian Federation, now exercises a judicial board on economic disputes of the Armed Forces of the Russian Federation, consisting of 30 judges. The judicial board on economic disputes of the Armed Forces of the Russian Federation became the second cassation instance, which revives certain judicial acts (see part 1 of Art. 291.1 of the APC of the Russian Federation as amended by the Federal Law of 28.06.2014 N 186-FZ "On Amendments to the Arbitration Procedure Code of the Russian Federation "). Appeal It is preliminarily studied individually for the judge of the Armed Forces of the Russian Federation, after which it can be transmitted (or not transmitted) to the specified collegium.

In addition, acts of the judicial board on economic disputes of the Russian Armed Forces are appealed to the Presidium of the Armed Forces of the Russian Federation. The supervisory complaint, as well as cassation, is previously studied by the judge of the Armed Forces of the Russian Federation and only after that it can be directed to the presidency of the Armed Forces of the Russian Federation.

Court notices

Persons participating in the case and other members of the arbitration process are notified by the Arbitration Court about acceptance of the statement or statements to the production and initiation of production in the case, about the time and place of the court session or the commission of a separate procedural action by sending a copy judicial act in orderestablished by this Code no later than fifteen days Before the start of the court session or the commission of a separate procedural action, unless otherwise provided by this Code.

This information is posted on the official website of the Arbitration Court on the Internet no later than fifteen days before the start of the court session. Documents confirming the placement by the Arbitration Court on the official website of the Arbitration Court on the Internet of the Indicated Information, including the date of their placement, are involved in the case file.

The notice is indicated that the members of the arbitration process are notified or are called, must contain:

1) the name and address of the arbitration court, the address of the official website of the Arbitration Court in the information and telecommunication network "Internet", the numbers of the arbitral tribunal, the email addresses on which the persons participating in the case may receive information about the case under consideration;

2) time and place of the court session or conducting a separate procedural action;

3) the name of the person notifiable or caused to court;

4) the name of the case on which the notice or challenge is carried out, as well as the indication, as one person is called;

5) Specify which actions and to which deadlines the notified or caused person is entitled or must be made.

In cases not tolerant, the arbitral tribunal may notify or cause individuals participating in the case, and other participants in the arbitration process with a telegram, telegram, for facsimile or e-mail or using other means of communication.

A copy of the judicial act is sent by the arbitration court by mail by registered letter with a notice of the presentation or by presenting the addressee to a receipt directly in the arbitration court or at the location of the addressee, and in cases that do not endile, by sending telegrams, telegrams, by facsimile or email either using other means of communication.

Persons participating in the case and other participants of the arbitration process are considered duly duly duly, if the arbitration court has information about receiving a copy of the definition of the claim or application for the production and initiation of the proceedings or a statement to the production and initiation of proceedings on the case He is in order established by this Code, or other evidence of receipt by persons participating in the case, information on the proceeding proceedings.

A citizen is considered notified in properly, if the court notice is awarded to him personally or an adult person living together with this citizen, a notice of one to return to the arbitral tribunal, notice or other document, indicating the date and time of delivery, as well as the source of information.

Persons participating in the case and other participants in the arbitration process are also considered duly notified by the Arbitration Court if:

1) the addressee refused to receive a copy of the judicial act and this refusal is locked by a postal service or an arbitration court;

2) Despite the postal notice, the addressee did not appear for receiving a copy of the judicial act sent by the Arbitration Court in installed mannerWhat the organization of postal communications notified the arbitration court;

3) a copy of the judicial act was not awarded due to the lack of a destination at the specified address, as the organization of postal communications notified the Arbitration Court with an indication of the source of this information;

4) judicial notice authorized person branch or legal entity representative;

5) the judicial notice was awarded to the representative of the person participating in the case;

6) there are evidence of the presentation or direction of judicial notice in the manner installed parts 2 and 3 articles 122 APC RF.

Concept of unified civilian procedure Code

The main purpose of developing a concept is to provide affordable and fair justice carried out in reasonable deadlines In compliance with the procedural norms by competent and independent judges, guaranteed execution of judicial acts, which is an unconditional condition for democratic development legal statebased on the priority of human rights and freedoms.

Improving efficiency russian legal proceedings It is carried out by the unification of civil and arbitration procedural legislation and the creation of the Concept of the Unified Civil Procedure Code.

There are many common institutions in the arbitral and civil process. However, a significant number of provisions of the Civil Procedure Code of the Russian Federation and the Arbitration Procedure Code of the Russian Federation seriously "compete" with each other.

Procedural law should not have differences on relations regulated by one "material" right, since other poses in the unequal position of these relations. The legislator has already done a lot to ensure that the so-called vessels and their "mask show" gone into the past. However, much remains to be done.

The unification of procedural legislation in the new Code is designed:

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

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

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

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

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

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

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

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


CONCEPT

Unified Civil Procedure Code

RUSSIAN FEDERATION

INTRODUCTION

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

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

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

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

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

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

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

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

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

The unification of procedural legislation in the new Code is designed:

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

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

3) to descend the most successful developments of existing as APK and GIC, spreading them to the entire civil process. For example, the ability to submit claims (statements) in electronic form (arbitration process) and judicial order (civil process);

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

5) consolidate existing types of simplified production (orderly, absentee, simplified production);

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

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

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

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

The project structure includes seven sections, 59 chapters.

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

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

P.V. Kraschenynikov

Structural approaches to concept

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

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

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

Adopted cuts:

APK - Arbitration Procedure Code of the Russian Federation;

GPK - Civil Procedure Code of the Russian Federation;

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

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

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

Text concept

Section I. General

Chapter 1. Basic provisions

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

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

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

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

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

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

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

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

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

This news was sounded yesterday at the third Moscow Legal Forum, organized by the Moscow State University named after O.E. Kutafina. According to the Doctor of Law, Vladimir Yarkov, the Working Group is valid for the State Duma Committee on Civil, Criminal, Arbitration and Procedural Legislation. According to experts, approximately 70 percent of the project has been prepared. But there are still a number of fundamental issues that require a response.

For the first time, the idea of \u200b\u200badopting a unified civil procedural code came after the unification of the Supreme and Supreme Arbitration Courts of Russia. Today, arbitration courts use the Arbitration Procedure Code. The procedure for consideration of civil cases in the courts of general jurisdiction is registered in the Civil Procedure Code. And last year the Code of Administrative Disposal was adopted, which regulates the procedure for a citizen with state authorities.

Lawyers know how important the procedure is important for courts. It ensures that each word will be heard and no argument is lost: everything will be considered in their turn.

According to experts, the arbitration procedural code will go down in history. But his best developments should be used in a single CCP. At one time, a lot of advanced provisions were made to the arbitration code. For example, the law allowed to submit claims via the Internet. A simplified procedure for consideration of disputes appeared in the APC: small cases are discussed without a call to the parties, the court examines the documents. Now this procedure is introduced into the current Civil Procedure Code.

A separate question, how to deal with administrative disputes, these cases have their own characteristics. When a person is sued with some part, the sides of the a priori are unequal. Therefore, you need a special procedure that equalizes chances. This task was solved by the Code of Administrative Disposal, adopted last year. It is not yet known whether the Civil Code and administrative disputes will spread, and their features will be spelled out in a separate chapter, or the code of administrative proceedings will remain a separate law, and the GPC will write only the procedure in civil and arbitration processes.

In turn, the Chairman of the State Duma Committee on Constitutional Legislation and State Construction Vladimir Pligin reported that the steps were planned to modernize legislation.

"The modernization process does not imply a change in value," he explained. - The task of modernization to create a new composition of legislation, a combination of basic industries with newcomers applying for independent regulation ". For example, now the State Duma is considering the draft of the new Code of administrative offenses. A lot of comments arrived to the document. According to Vladimir Pligina, the State Duma of the next convocation will receive an already modified version of the COAM project.

By the way, the Moscow Legal Forum is timed to the anniversary date - the 85th anniversary of the University named after O.E. Kutafina, one of the leading legal universities of the country.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

10. It seems that refusal of the principle of continuitySupacked in paragraph 16.3, although it will accelerate, and simplify the proceedings, but significantly worsen the quality of justice. Breaks B. court sessions Inevitably affect the evaluation of judicial evidence and the overall submission of the judge about the case under consideration.

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

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

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

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

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

Sergey Sharov

lawyer, analyst of the Center for Legal Monitoring MOGU

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

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

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

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

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

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

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

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

1. General comments on novels

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

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

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

2. The principle of justice

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

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

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

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

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

3. Taps

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

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

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

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

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

4. Studying

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

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

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

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

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

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

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