Proofs of the case are received in provided for by law The procedure for the facts on the basis of which the Court establishes the presence or absence of circumstances justifying the requirements and objections of the Parties, as well as other circumstances of importance for the right consideration and permission of the case.
This information can be obtained from the explanations of the Parties and third parties, witness testimony, written and physical evidence, audio and video recordings, expert opinions.
Evidence obtained with violation of the law do not have legal force And they cannot be based on the court decision.
Article 56 Code of Civil Procedure of the Russian Federation. Duty proof
Each party must prove the circumstances to which it refers to both on the basis of its requirements and objections, unless otherwise provided federal law.
The court determines which circumstances are to affect which side to prove them, makes the circumstances for discussion, even if the parties do not refer to any of them.
Article 57 Code of Civil Procedure of the Russian Federation. Performance and evidence
Evidence are submitted by the parties and other persons participating in the case. The court has the right to offer them to submit additional evidence. In the event that the presentation of the necessary evidence is difficult for these persons, the court for their petition is assisted in the collection and extermination of evidence.
At the request of the extermination of evidence, proof should be marked, and it is also indicated which circumstances that are important for the correct consideration and permission of the case may be confirmed or refuted by this evidence, the reasons that prevent evidence are indicated, and the location of evidence. The court issues the request to the request for evidence or requests evidence directly. A person who has a court exterminated by the court sends it to the court or transmits a person to his face having a corresponding request for submission to court.
Officials or citizens who are not able to provide exterminated evidence in general or in the court established by the court should notify the court within five days from the date of receipt of the request indicating the reasons. In the event of an unchecification of the court, as well as in case of non-compliance with the court's claim on the submission of evidence for reasons recognized by the court disrespectful on the perpetrators officials or on citizens who are not persons involved in the case, a fine is imposed on officials in the amount of up to one thousand rubles, to citizens - to five hundred rubles.
The imposition of a fine does not relieve the relevant officials and citizens who have exterminated evidence, from the obligation to submit it to the court.
Article 58 Code of Civil Procedure of the Russian Federation. Inspection and research evidence at their location
The court can inspect and study writing or material evidence at their place of storage or location of their location in the event of the impossibility or difficulty of delivering them to court.
Inspection and research of evidence is made by a court with the notice of persons participating in the case, but their non-appearance does not prevent inspection and research. If necessary, experts, specialists, witnesses may be caused to participate in the inspection and study of evidence.
When examining and examining evidence at the place of their location, the protocol is drawn up.
Article 59 Code of Civil Procedure of the Russian Federation. Presentation of evidence
The court takes only those evidence that mature for consideration and permission.
Article 60 Code of Civil Procedure of the Russian Federation. The admissibility of evidence
The circumstances of the case, which in accordance with the law should be confirmed by certain means of evidence, cannot be confirmed by any other evidence.
Article 61 Code of Civil Procedure of the Russian Federation. Grounds for exemption from evidence
Circumstances recognized by the court well-known do not need to be proof.
The circumstances established by the court order to the legal force on the previously discussed case are mandatory for the court. These circumstances are not proved again and are not subject to challenge when considering another case in which the same persons participate.
When considering civil cases, the circumstances established by the decision of the Arbitration Court that entered into legal force should not be proved and cannot be disputed by persons if they participated in the case, which was permitted by the Arbitration Court.
The conviction of the court in a criminal case, who entered into legal force is obligatory for the court, considering the case of civil law consequences of a person's actions in respect of whom the court sentence was made on issues whether these actions had a place and they were made by this person.
Article 62 Code of Civil Procedure of the Russian Federation. Judicial orders
The court considering the case, if necessary, to obtain evidence in another city or district, instructs the appropriate court to produce certain procedural actions.
In the court definition of a judicial order, the content of the case under consideration is summarized and information about the parties, the place of their residence or place of their location is indicated; circumstances subject to clarification; The evidence that the court must assemble the order. This definition is required for the court to which it is addressed, and must be completed within a month from the date of its receipt.
At the time of the execution of a judicial order, proceedings can be suspended.
Article 63 Code of Civil Procedure of the Russian Federation. Order of execution of a judicial order
The execution of the judicial assignment is made at the court hearing under the rules established by this Code. The persons participating in the case are notified about the time and place of the meeting, but their non-appearance is not an obstacle to the fulfillment of the order. Protocols and all assembled proofs are immediately sent to the court considering the case.
In case the persons participating in the case, witnesses or experts, who have given explanations, the testimony, the conclusion of the court who fulfill the judicial order will be in court, considering the case, they give explanations, indications, conclusions in common order.
Article 64 Code of Civil Procedure of the Russian Federation. Providing evidence
Persons involved in the case, having reason to fear that the submission of the evidence necessary for them will be subsequently impossible or difficult, can ask the court to ensure these evidence.
Article 65 Code of Civil Procedure of the Russian Federation. Application for providing evidence
The application for providing evidence is submitted to the Court, which addresses the case or in the area of \u200b\u200bwhose activity procedural actions to ensure evidence. The application must contain the content of the case under consideration; information about the sides and place of their residence or location of their location; evidence that must be provided; circumstances, to confirm that these evidence necessary; The reasons that prompted the applicant to contact the provision of evidence.
A private complaint may be filed for the definition of a judge to refuse evidence.
Article 66 Code of Civil Procedure of the Russian Federation. Procedure for providing evidence
Providing evidence is made by the judge according to the rules established by this Code.
Protocols and all the materials collected in order to ensure evidence are transmitted to the court considering the case, with notification of this persons participating in the case.
In case the provision of evidence occurred not in the court, which addresses the case, the rules of articles 62 and 63 of this Code apply.
Article 67 Code of Civil Procedure of the Russian Federation. Evaluation of evidence
The court assesses evidence in its inner conviction, based on a comprehensive, full, objective and direct study of the evidence in the case.
No evidence has a pre-established force for the court.
The court assesses the relevance, admissibility, the accuracy of each evidence separately, as well as the adequacy and mutual relationship of evidence in their totality.
The results of evaluation of the evidence The court is obliged to reflect in the decision in which the motives are given for which one evidence is adopted as a means of justifying the conclusions of the court, other evidence is rejected by the court, as well as the grounds for which one evidence is preferred before others.
In assessing documents or other written evidence, the court is obliged to make sure that such a document or other written evidence proceeds from the authority authorized to submit this type of evidence, signed by the person who has the right to fasten the document to the signature contain all other essential details of this type. evidence.
When evaluating a copy of a document or other written evidence, the Court checks whether a copy of a copy of the document has occurred when copying a copy of the document compared to its original, using which technical reception is made, it guarantees copying a copy of the document and its original, how the document is preserved.
The court cannot consider proven circumstances confirmed by only a copy of the document or other written evidence, if the original document was lost and not transferred to the court, and the copies of this document were not identified with each of the arcing parties, and it is impossible to establish the true content of the original document with the help of other evidence .
Article 68 Code of Civil Procedure of the Russian Federation. Explanations of the parties and third parties
Explanations of the Parties and third parties about the circumstances known to them are important for the proper consideration of the case are subject to verification and evaluation along with other evidence. If the party is obliged to prove his demands or objections, he keeps the evidence from it and does not submit them to the court, the court has the right to justify its conclusions with explanations of the other party.
The recognition of the circumstances on which the other Party shall base their claims or objections, frees the latter from the need to further proof these circumstances. Recognition is entered into the minutes of the court session. The recognition set forth in a written statement is attached to the case file.
If the court has reason to believe that recognition is committed in order to conceal the actual circumstances of the case or influenced by deception, violence, threats, conscientious misconceptions, the court does not accept recognition about the judgment of the definition. In this case, these circumstances are subject to evidence general grounds.
Article 69 Code of Civil Procedure of the Russian Federation. Witness's testimonies
The witness is a person who can be known any information about the circumstances of the importance for consideration and permission of the case. Not evidence information reported witnessed if it cannot specify a source of his awareness.
The person appropriate for the call of a witness is obliged to indicate which circumstances that are important to considering and permitting the case can confirm the witness, and report its name, patronymic, surname and place of residence.
Do not interrogate as witnesses:
1) representatives on civil business, or defenders in a criminal case, the case of administrative offense, or mediators - about the circumstances that they became known in connection with the fulfillment of the duties of the representative, defender or mediator;
2) judges, jurors, folk or arbitration siters - about the issues that arose in the deliberative room in connection with the discussion of the circumstances of the case when making a court or sentence;
3) priests of religious organizations that have passed state registration- about the circumstances that they became known from confession.
Has the right to refuse to give testimony:
1) a citizen against himself;
2) Spouse against the spouse, children, including adopted, against parents, adoptive parents, parents, adoptive parents against children, including adopted;
3) brothers, sisters against each other, grandfather, grandmother against grandchildren and grandchildren against grandfather, grandmother;
4) Deputies legislative bodies - in relation to the information that was known to them in connection with the execution of deputy authority;
5) Commissioner for Human Rights in Russian Federation - With regard to information that became known to him in connection with the fulfillment of their duties.
Article 70 Code of Civil Procedure of the Russian Federation. Duties and witness rights
The person caused as a witness is obliged to appear in the court at the appointed time and give truthful testimony. The witness can be interrogated by the court at the place of his stay, if he is due to illness, old age, disability or other good reasons Unable to appear on call.
For the country, the testimony not provided for by the Federal Law is responsible for the giving refusal of testimony, which is not provided for by the Criminal Code of the Russian Federation.
The witness has the right to reimburse the costs associated with a challenge to court and receiving monetary compensation Due to time loss.
Article 71 Code of Civil Procedure of the Russian Federation. Written evidence
Written evidence are containing information about the circumstances that are important for consideration and permission of the case, acts, contracts, certificates, business correspondence, other documents and materials performed in the form of a digital, graphic record, including those obtained by means of a facsimile, electronic or other connection or Other allowing the accuracy of the document to the way. Written evidence includes sentences and decisions of the court, other court decisions, protocols of the commission of procedural actions, trials of court sessions, annexes to protocols for the commission of procedural actions (schemes, maps, plans, drawings).
Written evidence are submitted in the script or in the form of a properly certified copy.
Genuine documents are submitted when the circumstances of the case under the laws or other regulatory legal acts It is subject to confirmation only by such documents when it is impossible to resolve without genuine documents or when copies of the document are presented, different in their content.
Copies of written evidence submitted to the court by the person participating in the case or exquisite court are sent to other persons participating in the case.
Document obtained in foreign stateis recognized by written evidence in court if its authenticity is not refuted and it is legalized in the prescribed manner.
Foreign official documents are recognized in court written evidence without legalization in cases stipulated by the International Treaty of the Russian Federation.
Article 72 Code of Civil Procedure of the Russian Federation. Return of written evidence
Written evidence in the case, at the request of those who submit these evidence, return to them after the decision of the court decision into legal force. At the same time, a copy of written evidence has been left in the case by the judge.
Prior to the entry of the decision of the Court to force, written evidence may be returned to those who submitted them to persons if the court finds it possible.
Article 73 Code of Civil Procedure of the Russian Federation. Evidence
The real evidence are subjects that, in their appearance, properties, location, or otherwise, can serve as a means of establishing circumstances that are important for consideration and permission.
Article 74 Code of Civil Procedure of the Russian Federation. Storage of physical evidence
Real evidence is stored in court, except in cases established by federal law.
Considered evidence that cannot be taken to court is stored at their location or in a particular place. They should be examined by the court, are described in detail, and if necessary, photographed and sealed. The court and the keeper take measures to preserve material evidence in constant condition.
Costs for storing material evidence are distributed between the parties in accordance with Article 98 of this Code.
Article 75 Code of Civil Procedure of the Russian Federation. Inspection and study of material evidence under rapidly
The real evidence subjected to rapidly damage is immediately examined and are examined by the court at the place of their location or in another place-specific place, after which the person who submitted them to inspection and research is returned, or are transferred to organizations that can be used for their intended purpose. In the latter case, the owner of material evidence may be returned to the items of the same kind and quality or their cost.
The time and place of inspection and research of such material evidence is notified by persons participating in the case. The non-appearance of properly notified persons participating in the case does not interfere with the inspection and research of physical evidence.
Data of inspection and research of material evidence under rapidly deterioration are recorded in the protocol.
Article 76 Code of Civil Procedure of the Russian Federation. Order of real evidence
Real evidence after the entry into force of the court's decision is returned to persons from which they were received, or are transmitted to those who have recognized the right to these items or are implemented in the manner determined by the court.
Items that according to the Federal Law cannot be owned or in possession of citizens are transferred to the relevant organizations.
Real evidence After their inspection and research, the court may be returned before the end of the proceedings in the case of the case, if they were received if the latter apply and the satisfaction of such a petition will not prevent the correct permission of the case.
For the disposal of real evidence, the court makes a definition for which a private complaint may be filed.
Article 77 Code of Civil Procedure of the Russian Federation. Audio and video
A person representing audio and (or) video recordings on an electronic or other carrier or applied to their exercise, is obliged to indicate when, by whom and under what conditions records were carried out.
Article 78 Code of Civil Procedure of the Russian Federation. Storage and return of audio and video speakers
Audio and video carriers are stored in court. The court takes measures to preserve them in constant condition.
In exceptional cases, after entering into the decision of the Court to force, audio and video media can be returned to face or organizations from which they received. At the request of the person participating in the case, it may be issued to the copies of records made by his account.
On the issue of returning audio and video reconnaissance, the court makes a definition for which a private complaint may be filed.
Article 79 Code of Civil Procedure of the Russian Federation. Purpose of expertise
In the process of consideration of the case of issues requiring special Knowledge In various fields of science, technology, art, crafts, the court appoints an examination. Examination may be entrusted with a forensic expert institution, a specific expert or several experts.
Each party and other persons participating in the case are entitled to submit to the court issues to be resolved during the examination. The final range of issues in which the expert's conclusion is required is determined by the court. The rejection of the proposed issues is obliged to motivate.
The parties, other persons participating in the case, have the right to ask the court to appoint an examination in a specific forensic institution or to entrust it with a specific expert; To declare an expert; Formulate questions for the expert; Get acquainted with the definition of the court on the appointment of expertise and with issues formulated in it; Get acquainted with the conclusion of an expert; Apply to the court on appointing re-, additional, comprehensive or commission examination.
When evading the parties from participation in the examination, failure to submit to experts of the necessary materials and documents for research and in other cases, if on the circumstances of the case and without the participation of this part of the expertise it is impossible to carry out, the court depending on which party is evading expertise, as well as for It matters, it is entitled to recognize the fact, to find out which the examination was appointed, established or refuted.
Article 80 Code of Civil Procedure of the Russian Federation. Contents of the court on appointment of expertise
In determining the appointment of expertise, the court indicates the name of the court; the date of appointment of expertise and the date, no later than which the conclusion should be drawn up and sent by an expert in the court who appointed an examination; names of the parties under consideration; Name of expertise; Facts, for confirmation or refutation of which is appointed expertise; questions set in front of the expert; surname, name and patronymic of the expert or name expert institutionwho charges the examination; submitted by the expert materials and documents for a comparative study; Special conditions for the treatment of them in the study, if necessary; The name of the parties that makes the expertise payment.
The court's definition also indicates that the expert is warned by the court or the head or head of the forensic institution, if the expertise is conducted by a specialist of this institution, about the responsibility provided for by the Criminal Code of the Russian Federation.
Article 81 Code of Civil Procedure of the Russian Federation. Obtaining sample handwriting for comparative study of the document and signature on the document
In case of challenging the authenticity of the signature on a document or other written proof of the person, the signature of which is available on it, the court has the right to get sample handwriting for a subsequent comparative study. The need to obtain samples of the handwriting is made by the definition of a court.
Obtaining samples of the handwriting of the judge or court can be carried out with the participation of a specialist.
A protocol is drawn up on obtaining samples of the handwriting, which reflects the time, place and conditions for obtaining sample samples. The protocol is signed by the judge, the person who had samples of the handwriting, a specialist, if he participated in the commission of this procedural action.
Article 82 Code of Civil Procedure of the Russian Federation. Comprehensive examination
Complex examination is appointed by the court if the establishment of circumstances in the case requires simultaneous research using various areas of knowledge or using various scientific areas within the same area of \u200b\u200bknowledge.
A comprehensive examination is entrusted to several experts. According to the results of research conducted, experts formulate a general conclusion about the circumstances and set it out in the conclusion, which is signed by all experts.
Experts who did not participate in the formulation of general conclusion or disagree with him sign only research part Conclusions.
Article 83 Code of Civil Procedure of the Russian Federation. Commission examination
Commissioning expertise is appointed by the court to establish the circumstances with two or more experts in the same area of \u200b\u200bknowledge.
Experts meet each other and, having come to the overall conclusion, formulate it and sign the conclusion.
An expert, without consonant with another expert or other experts, is entitled to give a separate conclusion on all or individual issues that caused disagreements.
Article 84 Code of Civil Procedure of the Russian Federation. Procedure for conducting expertise
Examination is carried out by experts of forensic expert institutions on behalf of the leaders of these institutions or other experts, which it is entrusted with the court.
Examination is held at the court session or out of the meeting, if necessary, on the nature of research or in case of impossibility or difficulty, deliver materials or documents for research in the meeting.
Persons participating in the case are entitled to attend the examination, except if such a presence may prevent research, a meeting of experts and a conclusion.
Article 85 Code of Civil Procedure of the Russian Federation. Expert Responsibilities and Rights
The expert is obliged to adopt an examination entrusted to him and conduct a full study of the submitted materials and documents; to give a reasonable and objective conclusion on issues set before him and send it to the court who appointed an examination; To call a court for personal participation at the court hearing and answer questions related to the study and enclosing them.
In the event that the questions set out beyond the limits of the special knowledge of the expert or the materials and documents are not limited or insufficient for conducting research and giving conclusion, the expert is obliged to send to the court that appointed an examination, a motivated message in writing about the impossibility of making a conclusion.
The expert provides the safety of the materials and documents submitted to him and returns them to court along with the conclusion or a message about the impossibility of making a conclusion.
In case of non-fulfillment of the court demanding an expert on the direction of the expert on the court in the period established in determining the appointment of expertise, in the absence of a motivated report of an expert or a forensic expert institution on the impossibility of timely examination or the impossibility of examination for the reasons specified in The second paragraph of the present part, the court on the head of the forensic expert institution or guilty of the specified violations of the expert imposes a fine of up to five thousand rubles.
The expert is not entitled to collect materials for the examination; To enter into personal contacts with the participants of the process, if it questiones his disinterest in the outcome of the case; To disclose the information that he became known in connection with the examination, or to inform anyone about the results of the examination, with the exception of the court who appointed it.
An expert or forensic institution is not entitled to refuse to conduct an examination assigned to them in the court established by the court, motivating this to refuse the parties to pay for examination before it. In case of refusal of the part of the expertise, an expert or forensic institution is obliged to hold an appointed expertise and together with a statement about reimbursement of incurred expenses to send an expert in court with documents confirming the cost of conducting an examination, to solve the court of a question for reimbursement of these expenses of the relevant Party taking into account the provisions of the first part of Article 96 and Article 98 of this Code.
Expert, as it is necessary for the giving conclusion, has the right to get acquainted with the materials of the case relating to the subject of expertise; ask the court about providing him with additional materials and documents for research; ask in court session issues of persons participating in the case and witnesses; Apply for the involvement of other experts to conduct an examination.
Article 86 Code of Civil Procedure of the Russian Federation. Expert opinion
The expert gives conclusion in writing.
The conclusion of the expert must contain a detailed description of the study carried out as a result of its conclusions and answers to the issues delivered by the court. In the event that an expert in conducting an examination establishes matter to consider and solving the case of circumstances, on which he was not issued by questions, he is entitled to include conclusions about these circumstances in his opinion.
The conclusion of the expert for the court is not necessarily evaluated by the court according to the rules established in Article 67 of this Code. Disagreement of the court with the conclusion should be motivated in a decision or court definition.
At the time of the examination, the proceedings can be suspended.
Article 87 Code of Civil Procedure of the Russian Federation. Additional and re-examination
In cases of insufficient clarity or incompleteness of the expert opinion, the Court may appoint an additional expertise, entailing it to hold the same or other expert.
In connection with the doubts about the correctness or validity of this conclusion earlier, the existence of contradictions in the conclusions of several experts the court may appoint a re-examination on the same issues, which is entrusted to another expert or other experts.
In determining the court on appointing additional or re-examination The motives of the disagreement of the court with earlier this conclusion of an expert or expert should be set out.
professional in Moscow
When considering civil matters, the circumstances established by the decision of the arbitration should not be proved and cannot be disputed by persons if they participated in the case, which was permitted by the Arbitration Court. 4. The conviction of the court in a criminal case, which entered into legal force is obligatory for the court considering the case of civil law consequences of a person's actions in respect of whom the court sentence was made on issues, whether these actions had a place and were they committed by this person. five.
Comments to ST 61 Code of Civil Procedure of the Russian Federation
An indication of the solution to the generality of the fact known in a certain locality is obligatory, since for the higher this fact may not be known.2. The ultrayial facts are called the facts that have been established by the entered into force and not canceled judicial decree. Prejection may have a complete and limited nature.
The facts established by the court decree are fully general jurisdiction in civil case, as well as orders of arbitration courts.
Article 61.
4. The conviction of the court in a criminal case, which entered into legal force is obligatory for the court considering the case of civil law consequences of a person's actions in respect of whom the court sentence was made on issues, whether these actions had a place and were they committed by this person. five.
On the application of Art
2 and 3 tbsp.61 Code of Civil Procedure of the Russian Federation there are difficulties even at the situation when there is an explanation of the Plenum of the Supreme Court of the Russian Federation in paragraph 9 of the Resolution of December 19, 2003
N 23 "On the court decision." ----------- Russian newspaper. 2003. December 26; Bulletin of the Supreme RF.
2004. N 2. Let us give a specific example from judicial practice. The decision of the district court was recognized as reasonable requirements of the applicant M.
Article 61 Code of Civil Procedure of the Russian Federation
When considering civil cases, the circumstances established by the decision of the Arbitration Court that entered into legal force should not be proved and cannot be disputed by persons if they participated in the case, which was permitted by the Arbitration Court. 4. The conviction of the court in a criminal case entered into legal force is obligatory for seeing the case of the civil law consequences of a person's actions in respect of which the sentence was made on issues whether these actions had a place and they were made by this person.Examples of practice - court decisions under Article 61 Code of Civil Procedure of the Russian Federation: Decision on Case 2-2243 / 2015 M-2207/2015 (08/23/2018, Ust-Labinsky District Court (Krasnodar Territory)) Case decision 2-6035 / 2015 M-6050 / 2015 (08/23/2018, Kalininsky district court
Article 61.
When considering civil cases, the circumstances established by the decision of the Arbitration Court that entered into legal force should not be proved and cannot be disputed by persons if they participated in the case, which was permitted by the Arbitration Court.4. The conviction of the court in a criminal case, which entered into legal force is obligatory for the court considering the case of civil law consequences of a person's actions in respect of whom the court sentence was made on issues, whether these actions had a place and were they committed by this person. You want to know the content of Art.
Article 61 Code of Civil Procedure of the Russian Federation
These circumstances are not proved again and are not subject to challenge when considering another case in which the same persons participate. 3. When considering civil cases, the circumstances established by the decision of the Arbitration Court that entered into legal force should not be proved and cannot be disputed by persons if they participated in the case, which was permitted by the Arbitration Court.St 61 Code of Civil Procedure of the Russian Federation with comments
These circumstances are not proved again and are not subject to challenge when considering another case in which the same persons participate. 3. When considering civil cases, the circumstances established by the decision of the Arbitration Court that entered into legal force should not be proved and cannot be disputed by persons if they participated in the case, which was permitted by the Arbitration Court.Some issues of applying procedural law when considering civil cases.
(Speech at the conference of judges 13.02.2008)
Sladkovskaya E.V.
Judge of the Pskov Regional Court
Analysis of cassation consideration of civil disputes allowed to identify whole line Typical mistakes allowed by judges of federal courts of the Pskov region when applying civil law. Such errors cannot not affect the quality of court rulings and often lead to their cancellation.
The purpose of this my presentation is of practical importance: on the example of the existing judicial practice of consideration of civil-legal disputes to focus on judges on specific aspects of application procedural lawWhat, I hope, will significantly reduce the number of errors in the future.
It should also be noted that in his message I will have to voice the general opinion of judges of the Civil Collegium of the Pskov Regional Court on the above topic.
Before proceeding to the essence of the question, I would like to remind the respected colleagues that the application of the procedural law is their professional and official responsibility.
So, it will discuss the quality of court decisions on civil cases, since, above all, the quality of some decisions of urban (district) courts of the Pskov region do not meet the requirements of the law and causes concern to the Pskov Regional Court.
At one time maintaining the Institute of World Judges and, as a result, reducing the load on federal Courts It was assumed to improve the quality of judicial documents. However, this did not happen. Practice has shown that judges who took competent solutions with a large load take them today. The same who could not boast of this before, did not save any low load. At the same time, solutions to some of the world judges can serve as an example for colleagues from federal courts.
The conclusion is obvious - it all depends on the attitude of a person to their duties, and not from the complexity of cases and their quantity.
Noteworthy and the fact that the analysis of judicial practice has revealed the greatest number of errors in judges with great refereery experience. It does not allow us to forget that the profession of judge involves a constant increase in the level of professional knowledge throughout the period of judicial activity. The quality of individual judicial resolutions suggests that some of us do not consider it necessary to turn to the Code once again.
I have repeatedly been advised to advise novice judges to apply in your work a rule tested Rule: Received statement of claimbefore making any procedural document, in front of us civil code, the corresponding special law, comment on Civil Code RF, Resolution of the Plenum of the Supreme Court for this category of affairs, look judicial practice, learning all this. And then you can count that questions will arise before judicial trial, not in the advice room.
At first glance, it is mentioned here about very simple things, but I really want to be heard, and therefore help. And for a start, believe me that if you follow this advice, you can find answers to many questions and formulate your own position at the preparation of the case for judiciality.
It is known that the Resolution of the Plenum of the Supreme Court of the Russian Federation is not regulatory legal acts, however, they are accepted on the basis of Art. 126 of the Constitution of the Russian Federation, contain clarification of issues arising in judicial practice when applying the norms of material and procedural law And mandatory for applications by ships.
In this connection, it should be reminded of the need to apply the Resolutions of the Plenum of the Supreme Court of the Russian Federation for procedural issues:
Resolution of the Plenum of the Supreme Court of the Russian Federation No. 2 dated January 20, 2003 "On some issues arising in connection with the adoption and enactment of civil procedure Code Of the Russian Federation, "Resolution of the Plenum of the Armed Forces of the Russian Federation No. 23 dated December 19, 2003" On Judicial Decision ", Resolution of the Plenum of FRVP No. 11 dated June 24, 2008" On the preparation of civil cases for trial ", the Resolution of the Plenum of the Russian Federation of the Russian Federation No. 13 dated June 26 2008 "On the application of the norms of the Civil Procedure Code of the Russian Federation in the consideration and permit of cases in the court of first instance", the Resolution of the Plenum of the Russian Federation of the Russian Federation No. 12 dated June 24, 2008 "On the applications by the courts of the Civil Procedure Code of the Russian Federation regulating production in the court of cassation instance "
When drawing up judicial decisions, it must be remembered that they will be read by higher instances. (And now also in European Court According to human rights!) And how competently and in accordance with the law is drawn up, will judge our professionalism.
It follows, in addition to the competent application of the law, comply with the linguistic culture.
Culture design legal document It assumes the logicality and sequence of presentation, the motivation of the conclusions, compliance with the style corresponding to the genre of the document.
The judiciary must be competent from the point of view of the Russian language. It must be in terms of a small volume (as a final document), but fully and understandable, since it is designed not only for professional lawyers. Used in the ruling legal concepts must comply with their presentation in law.
Of course, everyone writes differently, each has their own style of presentation. To compile a "ideal" solution, experience is needed, somewhere even talent. And for this you need to learn and not lazy, not forgetting about procedural normsah, which cannot be broken.
After reading a different decision, you come to the conclusion that the judge simply guessed the operative part of the decision.
I know judges who do not bother with respect for the norms of the Code of Civil Procedure of the Russian Federation, regulating the requirements for a court decision (chapter 16 of the Code of Civil Procedure of the Russian Federation).
You can not read the case, everything is rewritten in the decision: fully reading the parties, witnesses, requirements of persons, etc., the presentation of the content of all written documents, but there is no assessment and no conclusions. In addition, some court decisions hold a "computer disease" - scanning of the entire protocol and the presentation of the first person text.
I believe that, despite the gueaned resolution part of the decision, such judicial decrees need to be canceled, since they do not comply with the requirements of Art. 198 Code of Civil Procedure of the Russian Federation on the content of the decision.
During the preparation for the speech at the meeting of the judges, I got acquainted with judicial practice The Supreme Court of the Russian Federation and with surprise for themselves (we have no such practice yet) found that judicial decisions are canceled, as contrary to Part 1 of Art. 195 Code of Civil Procedure of the Russian Federation due to the impossibility of recognizing them legitimate and reasonable in content.
To find out what decision is legitimate and reasonable, you need to read the decision of the Plenum of the Armed Forces of the Russian Federation No. 23 dated December 19, 2003 "On the Decision".
The decision is legitimate when it is accepted with the exact compliance with the norms of procedural law and in full compliance with the norms of substantive law, which are subject to applying to this legal relationship, or based on the use of the Agreement of the Law or the Analogy of Law (Part 1 of Article 1, Part 3 of Article 11 of the Code of Civil Procedure of the Russian Federation).
If there are contradictions between the norms of procedural or material law to be applied when considering and resolving this case, the decision is legitimate in the case of the court in accordance with Part 2 of Article 120 of the Constitution of the Russian Federation, part 3 of Article 5 of the Federal Constitutional Law " judicial system Of the Russian Federation "and part 2 of Article 11 of the Code of Civil Procedure of the Russian Federation, the norms having the greatest legal force. When establishing contradictions between the rules of law to be applied when considering and resolving the case, the courts also need to consider explanations of the Plenum of the Supreme Court of the Russian Federation, data in the regulations of October 31, 1995 G. N 8 "On some issues of applying the courts of the Constitution of the Russian Federation in the implementation of justice" and dated October 10, 2003 N 5 "On the application by the courts of general jurisdiction of generally accepted principles and norms international law and international treaties Russian Federation".
The decision is justified when the facts that matter have been confirmed by the proofs studied by the court that meet the requirements of the law on their relativeness and admissibility, or circumstances that do not need to be proof (Articles 55, 59 - 61, 67 Code of Civil Procedure of the Russian Federation), and when It contains exhaustive conclusions of the court arising from the established facts.
Total error on the use of Art. 67 part 4 of the Code of Civil Procedure of the Russian Federation.
The results of evaluation of the evidence The court is obliged to reflect in the decision in which the motives are given on which one evidence is adopted as a means of justifying the conclusions of the court, other evidence is rejected by the court, as well as the grounds for which one evidence is preferred before others.
This is the requirement of the law, but it is not executed. In rare decisions of the judge, their conclusions are motivated in this part. And in the cassation and supervisory complaints, the parties refer to the violation of Part 4 of Art. 67 Code of Civil Procedure of the Russian Federation, and answer, there is nothing.
Now I would like to say about elementary, but, apparently, not all understandable things:
1) the court decision consists of introductory, descriptive, motivative and
operative parts.
In the introductory part of the decision, the date of the court decision, the name of the court who took the decision, the composition of the court, the court session, the parties, other persons participating in the case, their representatives, the subject of the dispute or the claimed requirement are (this is its difference from the descriptive parts).
2) In the descriptive part of the decision of the court, the content of the claims, the objection of the defendant and the explanation of other persons participating in the case should be reflected. If the plaintiff changed the subject or reason of the claim, increased or reduced its size, the defendant recognized the claim in whole or in part, it should be specified in the descriptive part of the solution.
3) In the motivation part of the court decision must be indicated:
Circumstances of the case established by the court;
The evidence on which the conclusions of the Court are based on these circumstances;
Arguments for which the court rejects certain evidence;
The laws that are guided by the court.
Intercom from Part 4 of Art. The 198 Code of Civil Procedure of the Russian Federation in the motivative part of the court decision can only be indicated on the recognition by the defendant's claim and accepting it by the court. The situation is similar in connection with the recognition by the court disrespectful reasons for passing the timing of limitation. In this case, the motivative part of the decision of the court indicates only to establish the circumstances by the court.
In addition, in the motivation part of the court decision, reflection should be reflected: the material law applied by the court to the legal relations under consideration, and the procedural regulations that the court guided when a decision was made. (Unfortunately, it is not always indicated by some judges when making decisions).
The resolution part of the solution provides the following information:
About satisfaction of the claim (or on refusal to satisfy the claim) in full or in part;
Indication on the distribution of court costs;
Terms and procedure for appealing the court decision.
The operative part of the judgment should contain exhaustive conclusions arising from the factual circumstances established in the motivation part. In this regard, it should be clearly defined that it was how it was decided to initial claimAnd on the oncoming demand, if it was stated (Art. 137- 138 Code of Civil Procedure of the Russian Federation), who, what actions and whose benefits should produce, which party is recognized as right. If refusing to the stated requirements, it should be completely or partially in the resolution part of the decision, to whom, with respect to whom it is denied.
The decision of the court is accepted immediately after the proceedings of the case. The operative part of the court decision must be signed by the judges, declared at the court hearing, which ended the proceedings of the case, and is attached to the case. Drawing up a motivated decision of the court in accordance with Art. 199 Code of Civil Procedure of the Russian Federation can be postponed for a period not more than 5 days from the date of the end of the proceedings.
Errors that allow some judges when drawing up a court decision:
1) the impossibility of separating the descriptive part and motivative;
2) the solution may contain such a sequence: motivative - descriptive - motivation part,
3) the solution contains the following phrases: "At the court hearing the plaintiff supported his claim and explained ..." The following follows the same as in the descriptive part ";
4) either in the descriptive part: "The plaintiff appealed to the specified claim ..." (should be read as in the introductory part).
5) In the operative part, it can only be indicated "in satisfying the claims to refuse", but it does not specify any claims or whose demands or in favor of whom.
I consider it necessary to affect the question of the ultimately here, since the courts more often began to apply Art. 61 Code of Civil Procedure of the Russian Federation and clarification in paragraph 8 and 9 of the Resolution of the Plenum of the Armed Forces of the Russian Federation No. 23 of December 19, 2003.
From literal content of Part 2 of Art. 61 Code of Civil Procedure It follows that the facts established by the court decree on the other, previously discussed, the case, are mandatory for the court, and only the objection of persons who did not participate in the other case can shake the presence of the conclusions of the court.
Two sentences, its components, contain one rule: previously established facts are mandatory for the court, provided that the same persons participate else.
Based on Part 4 of Article 1 of the Code of Civil Procedure of the Russian Federation, by analogy with part 4 of article 61 of the Code of Civil Procedure of the Russian Federation, it is also necessary to determine the importance of the judge on the case of an administrative offense during the consideration and permitting case of the case of civil lawsuit. The actions of the person in respect of which this ruling is made (decision).
According to Part 2 of Article 61 of the Code of Civil Procedure of the Russian Federation, the circumstances established by the court decision on the previously considered civil case are mandatory for the court. These circumstances are not proved and are not subject to challenge when considering another case, in which the same persons participate.
For the court considering civil cases, the circumstances established by the decision of the Arbitration Court (part 3 of Article 61 of the Code of Civil Procedure of the Russian Federation).
Under the court decree specified in paragraph 2 of Article 61 of the Code of Civil Procedure of the Russian Federation, any judicial resolution is understood that according to part 1 of article 13 of the Code of Civil Procedure of the Russian Federation adopts the court (judicial order, the court decision, the court decision), and under the decision of the Arbitration Court - the judicial act provided for by the article 15 of the Arbitration Procedure Code of the Russian Federation.
Based on the meaning of part 4 of article 13, parts 2 and 3 of Article 61, Part 2 of Article 209 of the Code of Civil Procedure of the Russian Federation, persons who did not participate in the case, according to which the court of general jurisdiction or an arbitration court made a relevant judicial decision, is entitled to consider another civil case with their participation Calculate the circumstances established by these judicial acts. In this case, the court makes a decision on the basis of evidence investigated at the court hearing.
In the same paragraph of the Resolution of the Plenum of the Russian Armed Forces of the Russian Federation as a resolutions with preceptant importance on the basis of Part 2 of Art. 61 Code of Civil Procedure of the Russian Federation, called court definitions. It does not clarify what definitions are we talking about. There is no doubt that such definitions should include the definitions of the court of cassation, which are a new decision in a civil case (para. 4 Article 361 of the Code of Civil Procedure of the Russian Federation), determining the termination of the proceedings in connection with the refusal of the plaintiff from the lawsuits of the parties. These definitions are established legal factsboth in material and procedural law.
It is more difficult to answer the question about the pretty value of the procedural facts established by definitions that are permitted exclusively procedural issues. In the theory of civil procedural rights, the point of view prevails, in accordance with which procedural and legal facts are not included in the subject of proof, they, along with the facts of the subject of proving, are referred to the limits of evidence.
In my opinion, it is impossible to make a general conclusion about the preyssociality of the facts established by entering into legal force by the definition of a court on procedural issues, due to their heterogeneity, of various meanings for the occurrence, development, suspension of movement and termination of civil procedural legal relations.
In the fourth paragraph of paragraph 8 of the Resolution of the Plenum of the Armed Forces of the Russian Federation, we are talking about the progressive value of the facts established in the judge's decision to attract the person to administrative responsibility for the administrative offense committed by them, the civil affairs of the civil case. Along with the decision of the term "decision", along with the decision of the term "decision", suggests that the ultimate importance is recognized as the facts established by the court decision on the challenge of the decision of another body on bringing to administrative responsibility. In such a situation, it should be indicated on acts not only judges, but also by the court. The opinion of the Plenum of the Russian Armed Forces of the Russian Federation on the prejudicial importance of judicial acts in the field of administrative jurisdiction should be stated especially clearly due to the fact that in the Code of Civil Procedure of the Russian Federation of 2002, excluding production by administrative deedsWith which Civil Code of 1964 was devoted to Chapter 24, from the actual civil proceedings, nothing was said about the progressive importance of the facts established by the judicial act in the case considered in the order of administrative proceedings.
Application of the analogy of the procedural right on the issue of court charges to exclude facts from the subject of proof, which indicates Supreme Court The Russian Federation, in fact, is a way to eliminate the gap in the right.
Given the above, it should be very careful to apply the media when considering civil cases.
Now a few words about the composition of the persons participating in the case (Article 34 of the Code of Civil Procedure of the Russian Federation).
The comment on the Civil Procedure of the Russian Federation on this matter shows the following: Persons involved in the case are the main participants of the Civil Process. The incorrect definition of the composition of persons participating in the case leads to the abolition of a court decision on the case.
The law does not contain a list of participants in the civil procedure. All participants in the civil process can be divided into three groups.
To the first Applies the court. Legal status Court (judges) regulates the Federal Constitutional Law "On Judicial System of the Russian Federation". The law "On the status of judges in the Russian Federation", the Federal Law "On the World Judges in the Russian Federation".
To the second The group includes persons participating in the case: sides, third parties and other participants listed in Art. 34 GPK. In turn, they are divided into two groups: a) persons with both material - and procedural-legal interest in the outcome of the case, speaking on their own behalf and in defense of their interests (parties and third parties), and b) persons Having only procedural interest in the outcome of the case acting in the process on their own behalf, but in protecting the interests of other persons.
To the third The group includes participants in the process that promote the normal implementation of justice (witnesses, experts, specialists, translators, judicial representatives).
The procedural activities of persons participating in the case affect the entire course of the process. The movement of the process is dependent on their actions, the transition from one stage to another.
The question in question also causes some difficulties in judges.
As soon as the courts do not call the parties upon presentation of counterclaims: the plaintiff respondent, the defendant, the plaintiff, the claimant third party, the plaintiff in the basic demand-defendant on the counter, despite the fact that the parties in civil-breeding, according to Art. 38 Code of Civil Procedure of the Russian Federation is the plaintiff and the defendant, despite the presence of a counterclaim, their procedural position does not change. The feature is only that the plaintiff will provide explanations on submitted requirements.
In the case of the case, there can be indirect witnesses interested notaries, although the procedural law is simply witness and notary, which, based on the nature of the controversial relationship, can be a witness, a defendant, a third party and an interested person. As for stakeholders, the general norm about this category in the Code of Civil Procedure of the Russian Federation does not exist.
However, from the design of some procedural rules, it can be concluded that the interested person is a person with legal interest involved in the affairs of special production and on affairs arising from public legal relations (as an applicant, the plaintiff - Art. 34, 223 Code of Civil Procedure), And these are persons who are not involved in the case, but whose rights and interests are violated, adopted by a court decree (Part 4 of Art. 13 GPC of the Russian Federation).
Such a participant in the civil process as a specialist, appeared with the adoption of the new Civil Procedure Code of the Russian Federation (from 01.02.2003).
As mentioned above, specialists contribute to the implementation of justice. Some judges refer to the conclusion of a specialist when making a decision, as proof that is incorrect.
Article 188 of the Code of Civil Procedure of the Russian Federation "Consultation of a specialist" is located in Chapter 15 "Judicial proceedings", and not in evidence, that is, the detention of a specialist is not proof, the specialist only helps the court to figure out these or other issues of a certain area of \u200b\u200bknowledge, so in the court decision specialist should be expressed as withdrawal.
Consideration of applications for perfect notarial actions Or a refusal to be resolved by chapter 37 Code of Civil Procedure of the Russian Federation (Art. 310-312 Code of Civil Procedure of the Russian Federation).
Position of article 310 Code of Civil Procedure of the Russian Federation, determining procedural orderin which the statement of the person who applied to the court should be considered that in a special production procedure, applications for a perfect notarial action or refusal to commit it for notaries, officials authorized to perform notarial actions, provided that If there is no dispute about the right.
In art. 311 Code of Civil Procedure of the Russian Federation is indicated for participation in the case of a notary or another official whose action is appealed. Consequently, the notice of an official carrying out a notarial action or a refusal of its commitment is mandatory. Persons participate in the consideration of the case as stakeholders, and not as defendants or third parties.
In some cases, the courts unreasonably attract notaries to participate in the case. In this regard, it should be borne in mind that on cases where the presence of a notary in the commission of notarial action is not required, there is no need for a call to the NOTARIUS Court, since the notary has any interest in such cases, for example: for the restoration of the term for the adoption of the inheritance, On the inclusion of property into the hereditary mass, to establish the fact of taking the inheritance, to establish the fact of the kindred relations.
Often, when considering cases, the question arises as to the conclusion of an expert institution, which was conducted and issued to the opposite of one of the parties and before the initiation of civil proceedings (non-judicial expertise) and without complying with the requirements of the Code of Civil Procedure of the Russian Federation. Apparently only as written evidence, that is, a document containing information about the circumstances of the importance for the consideration of the case.
In the Code of Civil Procedure of the Russian Federation, such innovation appeared as a preliminary court hearing (Art. 152 Code of Civil Procedure of the Russian Federation). It is aimed at identifying important circumstances for business, sufficiency of evidence, studying the facts of passing the timing of appeal to the court and the timing of the limitation.
In principle, the judge also invited the parties before the start of the trial "for conversation." Now this process has received legal design. The protocol is underway, and the parties have the right to submit evidence, bring arguments to declare petitions. The proceedings in the preliminary court session may be suspended or terminated, the application is left without consideration.
At the preliminary court session, the respondent's objection can be considered regarding the plaintiff's pass without valid reasons for the limitation period to protect the law and the established fegelist of the term of appeal to the court. When establishing the fact of the pass without valid reasons for the limitation period or the term of appeal to the court, the judge decides to refuse a lawsuit without researching other actual circumstances in the case. The court decision may be appealed in appeal or cassation. That is, the purpose of the preliminary court session is understandable. It follows from this that only one preliminary court session can be carried out in the case.
Now to the question of evidence:
Representing certain evidence that, in the opinion of the parties, confirms the circumstances on which the requirement is based (objection), two points that have important importance in the process of evidence. This refers to the relevance and admissibility of evidence.
The relevance of evidence allows to determine which evidence can be accepted by the court. According to Art. 59 Code of Civil Procedure of the Russian Federation The court takes only those evidence that matter to consider and permit.
The admissibility of evidence allows you to determine how the circumstances that are important for the case may be proves (confirmed).
According to Art. 60 Code of Civil Procedure The Circumstances of the case, which in accordance with the law should be confirmed by certain means of proving, cannot be confirmed by any other evidence.
It should be remembered that if earlier (until 01.02.2003), the parties could submit any evidence to the court, then according to the current procedural law (Art. 55 of the Code of Civil Procedure of the Russian Federation) only evidence obtained in the proposed order. Information about other facts and circumstances have no legal force. The order itself in the Code of Civil Procedure of the Russian Federation is not established, which means, to be guided by any way that does not contradict the law.
It should be remembered that the written explanation of the witness is not proof (Art. 69 Code of Civil Procedure of the Russian Federation). Audio (video) records can be accepted as evidence if the person has been warned about their conduct. It is known that the court is deprived of the evidence initiative, the court can only offer parties to submit certain evidence (Part 2 of Art. 56, Article 57 of the Code of Civil Procedure of the Russian Federation).
Regarding testimony, it is necessary to keep in mind that if the witness does not indicate a source of his awareness of certain facts and circumstances, such indications cannot be considered testimonies. It should not be forgotten that in certain cases the witness has the right to refuse to testify the testimony (part 4 of Article 69 of the Code of Civil Procedure of the Russian Federation, Art. 51 of the Constitution of the Russian Federation).
Participation in the civilian business of the prosecutor is enshrined in Art. 45 Code of Civil Procedure of the Russian Federation.
On the issue of applications. 3 tbsp. 45 Code of Civil Procedure RF should be remembered that the participation of the prosecutor is necessarily on eviction, to restore at work, on compensation for harm to life and health. In these cases, the court is obliged to notify the prosecutor. If the prosecutor did not appear at the court hearing, you can consider the dispute in his absence. Given the principle of competition of the parties, the prosecutor gives conclusion to the debate of the parties, in the debate without participating.
It makes sense to recall the peculiarities of the consideration of cases of regulatory acts (chapter 24 of the Code of Civil Procedure of the Russian Federation), which are reduced to the following:
1) Does not exist pre-trial order The settlement of the dispute (Part 1 of Art. 135 Code of Civil Procedure of the Russian Federation does not apply).
2) The impossibility of presenting oncoming requirements.
3) The possibility of consideration in the absence of stakeholders, including the applicant.
4) The impossibility of applying measures to ensure the application (for example, the suspension of the actions of the regulatory act).
5) The inability to apply absentee production rules.
6) The inability to attract anyone as third parties.
7) The use of the relationship that cannot be changed by agreement of the parties.
8) The court is not related to the grounds and arguments of the stated requirements.
9) Mandatory participation of the prosecutor.
10) The settlement agreement is not provided.
11) There is no deferment of the execution of a court decision.
In conclusion, I would like to once again emphasize that the above considerations affect only some aspects of application civil law. This is only the beginning of a large conversation that the judges of the Civic Collegium of the Pskov Regional Court intend to lead with their colleagues.
New edition of Art. 61 Code of Civil Procedure of the Russian Federation
1. Circumstances recognized by the court well-known do not need to be proof.
2. The circumstances established by the court order to the legal force on the previously discussed case are mandatory for the court. These circumstances are not proved again and are not subject to challenge when considering another case in which the same persons participate.
3. When considering civil cases, the circumstances established by the decision of the Arbitration Court that entered into legal force should not be proved and cannot be disputed by persons if they participated in the case, which was permitted by the Arbitration Court.
4. The conviction of the court in a criminal case, which entered into legal force is obligatory for the court considering the case of civil law consequences of a person's actions in respect of whom the court sentence was made on issues, whether these actions had a place and were they committed by this person.
5. The circumstances confirmed by a notary when performing a notarial action do not require proof if the authenticity of a notarized document is not refuted in the manner established by Article 186 of this Code, or a significant violation of the procedure for the commission of notarial action is established.
Commentary on Article 61 Code of Civil Procedure of the Russian Federation
1. According to the general rule formulated by, each Party must prove the circumstances to which it refers to both on the basis of its requirements and objections, unless otherwise provided by federal law. Exceptions from this rule are enshrined in Art. 61 GPK.
This article provides for two groups of circumstances that the persons participating in the case may not prove, while the court may put them in the foundation of its decision: well-known (part 1) and the prejudicial (part 2 - 4) facts. Another group of circumstances not subject to evidence should be specified - these are recognized facts (part 2 of Art. 67 Code of Civil Procedure of the Russian Federation). For details, see Comment of Part 2 of Art. 67.
The first group of the facts specified in Part 1 of Art. 61 Code of Civil Procedure of the Russian Federation, the persons participating in the case may not prove only in cases of recognition of their well-known court considering the case. Therefore, in cases where the Court does not authorize recognition of circumstances as well-known, they are subject to evidence general rulesprovided for by Art. 56 GPK.
Well-known facts are the facts known to a wide range of persons, as well as the court, which is endowed with the right to recognize them as such. Since well-known is the category relative, the degree of awareness of such facts may be different (world-famous, throughout the Russian Federation, on the territory of a separate subject of the Russian Federation, district, settlement etc.). At the same time, the extent of the circumstances of the circumstances should indicate in the motivation part of its decision, to confirm the foundations of exemption from their proof of people involved in the case.
An example of well-known circumstances can serve as a crisis of 2008, an accident in Sayano-Shushenskaya HPP, various kinds of natural disasters, epidemics, etc.
2. According to Part 2 of Art. 61 Code of Civil Procedure of the Russian Federation. The circumstances established by the court decree on the previously considered civil case are obligatory for the court. These circumstances are not proved and are not subject to challenge when considering another case, in which the same persons participate. These circumstances are also called the prejudicial (the term "alliance" from Lat. Praejudicio - prediction), since they have been established by the court decision on the previously discussed case.
As clarified the Plenum of the Armed Forces of the Russian Federation in paragraph 9 of its decree dated December 19, 2003 N 23, under the court decree specified in Part 2 of Art. 61 Code of Civil Procedure of the Russian Federation, it is understood as any judicial resolution, which according to Part 1 of Art. 13 Code of Civil Procedure of the Russian Federation accepts court. Part 1 Art. 13 Code of Civil Procedure of the Russian Federation provides that the courts take judicial decisions in the form judicial orders, Decisions of the Court, Court Definitions, Decisions of the Presidium of the Supervisory Court.
The persons participating in the case will not need to prove in a new civil case with the same subject of the circumstances that will be established by such judicial regulations, subject to their entry into force according to the rules of Art. 209, 391 GPK. At the same time, it will not be important in which status these persons participated in the first case, according to which the facts are established by the court decree, which entered into legal force, the main thing that they would be involved in the case.
Persons who did not participate in the case, according to which the court of general jurisdiction, a relevant judicial decision was made, it is entitled to challenge the circumstances established by these judicial acts when considering another civil case with their participation. And to prove all the circumstances of the person participating in the case, in accordance with the general rules of proof enshrined by Art. 56 GPK. It is noteworthy that the formulation of this provision actually reproduces the content of part 2 of Art. 209 GPK.
3. Exemption from the provisions of the circumstances established by the Arbitration Court differs from liberation from proving the facts established by the Court of General Jurisdiction, in the fact that only those circumstances that are established by the decision of the Arbitration Court will have the urgent importance. Such a position is fixed in paragraph 9 of the Resolution of the Plenum of the Armed Forces of the Russian Federation of 19.12.2003 No. 23: Under the decision of the Arbitration Court, a judicial act was to be understood as provided for by Art. 15 apk. According to Part 2 of Art. 15 APK Decision is "a judicial act adopted by the Arbitration Court of First Instance when considering the case on the merits."
If you appeal to the terminology of the APK (part 1 of article 15), all judicial acts arbitration courts are adopted in the form of decisions, decisions and definitions. Only the decisions of arbitration courts will contain prejudice facts when considering cases in the courts of general jurisdiction with the same persons participating in the case. The facts established by the definitions and ordinances of the Arbitration Court will not have urgency. This position of the legislator is not quite true, since with this approach in cases of cancellation or change of the decision of the Arbitration Court in the appellate, cassation or supervisory procedure established by the data decisions court instances The arbitral tribunal should not be recognized by the prejudicial, the person participating in the case should prove them. The same can be said about the definitions of the arbitral tribunal.
The coincidence of the composition of persons participating in the case, in the court of general jurisdiction and arbitration courts, it is possible, since the possibility of citizens participation in arbitration courts provides for the revision of the current APK (part 4 of Art. 27, Part 2 of Art. 33).
The interpretation of this provision allows us to conclude that if the composition of the persons participating in the case, in the court of general jurisdiction differs from the composition of the participants in the Arbitration Court, the circumstances established in the decision of the Arbitration Court are subject to evidence on the general basis (Art. 56 Code of the Russian Federation).
4. When considering a civil case on the civil law consequences of acts, in respect of whom the sentence has been imposed, which entered into force, for the court they will have an all-life importance to only two circumstances: whether these actions have (inaction) and they have been committed by this person. No other circumstances and facts reflected in the court sentence will not be mandatory for the court considering civil cases, and they are all subject to evidence on the general reasons. Based on this, the court, making a decision on the claim arising from the criminal case, not entitled to discuss the defendant's guilt, but may resolve the issue of compensation.
Deciding on compensation material damage, caused by a crime, the court is not related to the amount that is listed in the verdict of the court in a criminal case. Of course, the circumstances of the criminal case reflected in the verdict of the court can be used in the consideration of civil affairs, but they will not have uncertain importance, and the amount of damage will be determined by the court considering civil cases under the general rules of civil procedural legislation.
It is noteworthy that in Art. 61 Code of Civil Procedure of the Russian Federation is not indicated on the recognition by the court of the progress of the circumstances established by the decree and (or) decision of the judge on the administrative offense case. We need to be conducted only about the acts of the court, as the decisions of officials, the plenipotentiary consider cases of administrative offenses, can be appealed to the court (Part 2 of Art. 46 of the Constitution, Article 30.1 of the Administrative Code of the Russian Federation).
It seems that in this case, the courts must be recognized by the preventive circumstances established by the decree and (or) decision of the judge in the case of an administrative offense, otherwise the norms of the special part of the Code of Civil Procedure become inactive and meaningless. In particular, Art. 215 Code of Civil Procedure of the Russian Federation provides for the obligation of the court to suspend the proceedings in the case of "the impossibility of considering this case to the permission of another case under consideration in civil, administrative or criminal proceedings." Such a suspension of production is necessary to permit another case related to the case under consideration, in civil, administrative or criminal proceedings, and for use in suspended case after it is renewed by the judicial resolutions, sentences, decisions and decisions to recognize the prediction of certain facts. There is a reasonable question: how will the civil case affect (subject to suspension) affect the civil case, considered in the order of administrative production, what effects arise after the renewal of the proceedings and what will happen if not suspended legal proceedings? In this case, no interdependence and communication between these cases will not be. But then another question arises: why in the specified norm of Art. 215 Code of Civil Procedure of the Russian Federation is not indicated on the need to suspend production before the permission of another case in the order of legal proceedings in the arbitration court?
This gap is proposed to be addressed by applying the analogy of the law, while this position is also adhered to the Russian Armed Forces of the Russian Federation, which indicated in paragraph 9 of the Resolution of the Plenum of the Armed Forces of the Russian Federation dated December 19, 2003 No. 23, which on the basis of the analogy with Part 4 of Art. 61 Code of Civil Procedure of the Russian Federation, it is also necessary to determine the importance of the decision of the judge on the case of an administrative offense, when considering and permitting the case of the case on the civil law consequences of a person's actions in respect of which this ruling (decision) was made.
Another comment to Art. 61 Civil Procedure Code of the Russian Federation
When considering civil cases, the facts not subject to proof should be taken into account. Code of Civil Procedure of the Russian Federation provides for three categories of facts that may be based on a decision on the case without proof at the court hearing:
1) well-known facts;
2) predominate facts;
3) recognized by the facts (see Art. 68 GPK and comment on it).
In the commented article, two groups of facts not to be proof are enshrined.
Well-known are the facts that a wide range of persons know, including the judges. The right to recognize the fact well-known court. This is possible while simultaneously presented two conditions:
1) objective - the fame of the fact a wide range of persons;
2) Subjective - the fame of the fact to all court members.
Speech in such cases is about axioms, i.e. Judgments, repeatedly proven in practice and not needing special evidence due to actual clarity or methodological simplicity. The reason for the adoption of such axioms lies in the cognitive ability of a person to the immediate discretion of the obvious truths.
In case of doubt, specialists (for giving consultations, explanations on the facts known as the profession, common in a certain locality, and so on may be involved in the well-known fact.
Prejudicially established facts - the verdict previously made and entered into legal force or a court decision on a specific case.
The alliance is such a regulatory prescription that provides an authority considering a legal entity, the ability to free oneself from the need to proceed the circumstances already established and enshrined in the relevant judicial act (decision, verdict).
The circumstances established by the decree entered into legitimate strength on the previously discussed case are mandatory for the court. These circumstances are not proved again and are not subject to challenge when considering another case in which the same persons participate.
When considering civil cases, the circumstances established by the decision of the Arbitration Court that entered into legal force should not be proved and cannot be disputed by persons if they participated in the case, which was permitted by the Arbitration Court.
The verdict of a court sentenced to the case on the civil law consequences of a person's actions in respect of whom the court sentence was made on such issues as: whether these actions have the place and whether they are committed by this person. Other circumstances established by the verdict of the court of general jurisdiction do not have an opinion to consider the case by the court.
However, in the case of the evidence in the case, they are conflict with the prejudicial facts and at the same time existing opportunities for an additional research of evidence (from the standpoint of their relatives, admissibility and reliability), the court due to the action of the principle of unbumbing judicial evidence, their free evaluation (see Art. 67 GPC and comment on it), as well as the presumption of the truth of the court decision (sentence), has the right to resolve the case on the basis of evidence in the case.
Recognition of the fact is a special case of exemption from evidence. Here the role of the discretion, the inner conviction of the judge (judges) in the veracity of the person, the absence of coercion or delusion is great. Therefore, if the court has reason to believe that recognition is committed in order to conceal the actual circumstances of the case or under the influence of deception, violence, threats, conscientious misconception, the court does not accept recognition about the court is made by the court. In this case, these circumstances are subject to evidence on general reasons.
How can you make sure the grounds for exemption from the proof specified in the commented article and part 2 of Art. 68 GPK are relative, they are not proved if they do not doubt the court.
- Up
Art. 61 GPC establishes the grounds that exclude the obligation to proceed in the case. They apply to a limited list of facts or circumstances. Despite the sufficiently clear wording, the provisions of the article cause questions.
Provisions on evidence
General provisions The procedural law impose on the participants in the process of the duty to justify their allegations. In some cases, the burden of providing evidence may be distributed differently. For example, in cases of damage to harm, the claimant is obliged to prove the fact of causing harm, and the defendant is the fact of the absence of its guilt. Indications are contained directly in the text of the law.
In practice, it should not be limited only to the proving of its own position, if it is possible to refute the arguments of the second party, it is necessary to use it.
Art. 61 GPC helps to avoid serious misunderstandings in judicial practice.
Removing the duty of evidence
Art. 61 GPC includes a list of criteria giving the right to consider one or another fact proven:
- facts or circumstances considered well-known;
- facts or circumstances that were previously established by judicial acts regarding the same persons;
- facts or circumstances established by the Arbitration Court in the case with the same participants;
- circumstances established by the verdict in terms of the presence of a specific person;
- the facts mounted by a notary if the authenticity of the document or the observance of the procedure for the commission of a notarial action is notary.
Changes in legislation
Changes to this article from the moment of adoption of the Code did not contribute until 2014. The only edress touched upon the introduction of an additional provision on the significance of notarial documents. What appeared, in general, the logical development of the legislation on the notary, since the documents certified by the notary and the authorities adopted are not checked, for example, contracts.
Thanks to this Art. 61 Code of Civil Procedure of the Russian Federation in new edition It looks more logical.
What does it mean - do not need to prove or refute?
Proving means submission of documents or witnesses confirming the position or statement of the Party. The court also does not check such facts, which is especially important in numerous processes with the participation of some and the same persons. Circumstances or facts are accepted on faith.
Well-known facts
Arbitrage practice under art. 61 GPK is the most difficult in terms of considering well-known facts.
Less issues causes dating events - it is usually prescribed in the texts of regulatory acts.
Such facts are mentioned in the presidential decrees (the use of repression against peoples or groups of persons on national and religious signs).
The Supreme Court of the Russian Federation, developing the provisions of the legislation, mentions repression against the Ingush as a well-known fact (the court decision was made in 2016).
The Moscow City Court in one of its decisions recognized the fact of habitat wild animals in the forests and the lack of opportunity to control and limit the sudden appearance on the road.
The facts of excitement, uprisings, civil wars in various countries are already considered generally accepted in our time.
A local court may not be configured to recognize the fact of intensive traffic in the city where the case is being consistent.
Civil acts
The GPC provides a reference to court decisions. This includes the definitions and solutions of the courts of the first and second instance, determining the decree of courts of cassation and supervisory instance. After all, paragraph 2 of Art. 61 Code of Civil Procedure of the Russian Federation refers to all judicial acts completing the trial. For example, determining the refusal to open production.
Judicial acts They matter if they were taken during the consideration of the dispute between the same parties (plaintiffs, respondents, third parties interested in persons).
It should be noted that when replacing persons participating as a part of the process, provisions on the succession are applied.
Judicial acts made by the results of the arbitration process
Comments Art. 61 Code of Civil Procedure obliges to take on faith facts and circumstances identified by the Arbitration Court and reflected in his judicial acts. The law prohibits checking or challenge them in civil Procedureif it is conducted by the same persons or their successors.
Court sentence
Sentences, decisions, identifying vessels ending with criminal proceedings, respond to two questions:
- what action or inaction was committed by a person;
- the fault of the fault of the person in committing a crime.
All other facts, such as damage, have no strength. They are proved in general.
If the court in the criminal process rejected civil action, the plaintiff has the right to submit it again, but already within the framework of civil affairs. If, within the framework of civil affairs, he was rejected, then it is no longer considered during the proceedings of the criminal case.
Notarial actions
Documentary results of notarial activities are accepted on faith, but not as judicial acts. The party has the right to challenge the legality of the actions of the notary and the document issued to them.
The party has the right to declare the workforce of documents, and then the court (if there is objective reasons) will assign an examination to verify the argument.
This provision not only emphasizes the significance of the notary activity, but also eliminates people from the Volokat, the need to prove obvious.
Administrative responsibility
The result of the attraction of courts is becoming ruling or administrative bodies. However, in the CCP, nothing is said about the status of these documents, despite their official status.
In explanations judicial authority It is believed that these documents confirm the fact of committing illegal action or inaction, and the practice confirms this opinion. For example, in judicial processes about causing harm in result of an accident The measures of the traffic police or courts adopted according to the Administrative Code are actively used.
Here, the lack of law is compensated by official clarifications, which is emphasized by Art. 61 Code of Civil Procedure of the Russian Federation with comments.
Judicial acts adopted according to CAS
They do not say anything about them, but despite the gap in the right, the principle of the obligation of decisions taken for citizens, organizations and authorities, to which the courts belong to.
So far there are two opinions. One thing is connected with the literal interpretation of the provisions of the article and excludes the use of the media against judicial acts on administrative affairs.
Another opinion is based on the use of analogy and clarifications, which, however, were given to the adoption of CAS and concerned the CACAP and AIC.
In some CIS countries, the Civil Procedure Codehs directly prescribed the dissection of the decision on the administrative offense and judicial acts adopted within the CAS (for example, in Ukraine).
Finally
Art. 61 GPC describes the criteria for facts or circumstances that do not need to be proof. In reality, lawyers face facts from previously accepted judicial acts and those considered well-known.
The article, despite the changes made, does not fully regulate the issue of the ultimate, which is partly replaced by judicial practice and official explanations.
Despite this, the provisions of the article help maintain the stability of previously accepted solutions and avoid revising the previously established facts.