Full text Art. 220 Code of Civil Procedure of the Russian Federation with comments. New acting editorial With additions for 2020. Consultation of lawyers under Article 220 Code of Civil Procedure of the Russian Federation.
The court terminates the proceedings in case: the case is not subject to consideration and permission in court in the course of civil proceedings on the grounds provided for in paragraph 1 of the first part of Article 134 of this Code; there is a focused on the same parties that entered into legal and adopted on the same basis, the decision of the court or the definition of the court on the termination of the proceedings in connection with the adoption of the reference of the claimant from the claim or approval of the world agreement; the plaintiff refused claim and refusal accepted by the court; the parties concluded world Agreement and it is approved by the court; there is an obligatory for the parties, adopted on the dispute between the same parties, about the same subject and on the same basis, the decision of the Arbitration Court, except if the court refused to be issued executive Sheet on the forced execution The decisions of the Arbitration Court; after the death of a citizen who was one of the parties on the case, a controversial relationship does not allow the succession or liquidation of an organization that was one of the parties on the case, completed.
Commentary on the article 220 Code of Civil Procedure of the Russian Federation
1. B. judicial practice Sometimes there are situations when accepted for the work of the court general jurisdiction Civil case cannot be resolved essentially. In this regard, the law provides for two forms of the end of the proceedings without making a decision: the termination of the proceedings and leaving the application without consideration. The termination of the proceedings suggests that the person who applied to the court for the protection of the violated right or the interest protected by the law was lacking the right to appeal to the court or after the start of consideration of the case arose circumstances that do not allow to resolve the matter on the merits. The termination of the proceedings excludes the re-appeal to the court with a lawsuit on the dispute between the same parties, about the same subject and on the same basis.
If there are circumstances that impede the consideration of the case in essence at the moment, the court leaves an application without consideration, which does not prevent the re-applying of interested persons to court with a identical statement in eliminating circumstances that served as the basis for leaving the application without consideration.
Institutions of the end of production in the case without making decisions are applied not only in the court of first instance, but also in the court of appeal (), cassation (Art. 390 Code of Civil Procedure) and the supervisory (Article 391.12 of the Code of Civil Procedure) of instances (see also comment on the specified articles). Besides of claims These institutions can be applied in the work on affairs arising from public relations, and in special production.
2. The list of termination conditions in the case is not exhaustive in the commented article. Thus, the court ceases to produce a case arising from public-legal relations if there is a court decision taken on the application on the same subject and entered into legal force, as well as in the case provided for by Part 3 of Art. 247 GPK (see Comment on Art. 248 GPC).
The grounds for termination of the proceedings can be divided into three groups.
The first group of foundations (ABZ.2, 3 and 6, Art. 220 GPK) suggests that the interested person did not have the right to appeal to the court. The adoption of such an application for consideration by the court is almost always the result of a judicial error, since if the judge had revealed these circumstances earlier, he had to refuse to accept the application ().
The second base group (paras.4 and 5th Art. 220) arises after the initiation of production in the case and is the result of the management of the parties aimed at terminating the dispute.
The third base (Abz.7 Art. 220) suggests that the parties to the process are no longer.
3. The termination of the proceedings under the grounds provided for by the paragraph 2 of the commented article does not mean that the interested party is deprived of the right to judicial protection, since this would contradict Art. 46 of the Constitution. It is entitled to protect his rights and legal interests in foreign judicial order, provided for by law to resolve such requirements; The statement in defense of his rights, freedoms and legitimate interests may be filed in the court by another state body, the authority local government, the organization that this right is granted by law, etc. (See Comment on Art. 134 GPC).
4. Paragraph 3 of Art. 220 GPK speaks of the inadmissibility of consideration by the court of identical lawsuits.
After entry into force of law, the court's decision acquires a number of properties, including the property of exclusivity, in accordance with which after the resolution of the dispute by the court, other persons participating in the case cannot again submit a shared claim to the court, and the court is not entitled to take it to Its production. Similar consequences are occurring in the case of a court of determining the refusal of the claimant from the claim or approval of the world agreement of the parties (see a comment on Art. 134, 173 and 209 of the Code of Civil Procedure).
On the basis provided for by the specified paragraph, the proceedings are subject to termination, if after refusing to satisfy the claim of the property owner of the extermination from someone else's illegal ownership of property enshrined on the right of economic management or operational management for a unitary enterprise or institution, with a claim for The same subject and on the same basis, besides the defendant in court, a unitary enterprise or an institution (paragraph 7 of the Resolution of the Plenum of the Supreme Court of the Russian Federation N 10, Plenum of the Supreme Arbitration Court of the Russian Federation No. 22 dated April 29, 2010 "On some issues arising in judicial practice in resolving disputes related to the protection of property rights and other real rights. "
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BVD of the Russian Federation. 2010. N 7.
5. By virtue of the ABZ.6 commented norm, the consideration of the case in court is impossible, if the decision of the Arbitration Court has previously been issued on it, which is mandatory for the parties. The exception is cases of cancellation by the court of the decision of the Arbitration Court in whole or in part on the grounds provided for in Part 4 of Art. 422 GPK, since after such a cancellation, interested persons have the right to seek to resolve the dispute to the court; Court refusal to issue an executive list for compulsory fulfillment of the decision of the Arbitration Court, since such a refusal does not prevent the parties to the arbitration to appeal to the court (see the comment on Art. 134, 422 and 427 of the Code).
6. The procedural action of the parties specified in paragraph 4 and 5 of Art. 220 GPCs, must be committed in accordance with the procedure established by Art. 173 GPK. Thus, the statement of the claimant on the refusal of the claim, the conditions of the global agreement of the parties are recorded in the minutes of the court session. If the rejection of the claim or the settlement agreement is expressed in writing, they join the case file. The court is obliged to clarify the plaintiff, the parties procedural consequences according to the refusal of the claim or the conclusion of the settlement agreement.
According to the requirements of Art. 39 Code of Civil Procedure The court does not accept the refusal of the claimant from the claim and does not approve the settlement agreement if these actions contradict the law or violate the rights and legitimate interests of others. The court makes a definition and continues the consideration of the case on the merits (Article 173 of the Code of Civil Procedure).
7. The death of one of the parties in the case is the basis for termination of production provided that the dispute relationship does not allow successfulness as having a close relationship with the personality of the Party (for example, claims for restoration at work, on the recovery of alimony, on eviction due to the impossibility of joint residence , on compensation for harm caused by health, etc.). The proceedings are also subject to termination in the event that the liquidation of the organization that was one of the parties on the case was completed, since under Article 61 of the GC Elimination legal entity It entails his termination without the transition of rights and obligations in order of succession to other persons.
If after the death of a citizen who was the case on the case, the succession is possible, and also in the case of the reorganization of the legal entity, the court does not stop, but suspensions the proceedings (see the comment on Art. 215 GPC).
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Judicial board on civil cases of the Supreme Court Russian Federation As part of:
presiding - Konyysheva V.P., Judges - Pchelintseva L.M. and Kharlanova A.V.
examined in open court of October 14, 2008. Civil case on the suit of the village of S.Yu. To the tree V.E., the tree X.E., Town V.D., Town Yu.M., Town S.M. On the recognition of the invalid testament of the village of S.E., compiled on March 1, 2003 in the notarial office and certified by the notary of Nalchik Shogenova R.T., Duplicate of the testament of the tree of S.E., issued on January 16, 2007. Notary of Nalchik notarial county Hanfenova G.I., certificates of ownership of inherited shares in authorized capital Mercury Ltd., issued by the defendants on January 23, 2007 by the notary of the Circassian notary districts, A.Zh., according to the supervisory complaint of the representative of VE tree. - Schtemberg E.V. on the definition of the judicial board on civil cases Supreme Court Karachay-Cherkess Republic of December 11, 2007, which canceled the definition of the Circassian City Court of the Karachay-Cherkess Republic of November 9, 2007
Having heard the report of the judge of the Supreme Court of the Russian Federation Pchelintseva L.M., explanations of the representative of the tree V.E. - Mikhneva S.V., who supported the arguments of the supervisory complaint, explaining the representative of the village of S.Yu. - Khrustaleva K.D., who believed the definition of the judicial board on civil cases of the Supreme Court of the Karachay-Cherkess Republic of December 11, 2007, not subject to cancellation, explanations of the representative of a third party non-profit organization "Notary Chamber of the Karachay-Cherkess Republic" Isaalovsky S.R., who believed the supervisory complaint not to be satisfied, having studied the materials of the case transferred with the supervisory complaint to consider the court session of the judicial board on civil cases of the Supreme Court of the Russian Federation by the determination of the Deputy Chairman of the Supreme Court of the Russian Federation Nechaeva V.I. Of September 16, 2008, the judicial board on civil cases of the Supreme Court of the Russian Federation installed:
Tree S.Yu. He appealed to the court to the tree of V.E., the tree X.E., V. T., Town, Yu.M., S. V. On the recognition of invalid certificates of ownership of inherited shares in the authorized capital of Mercury LLC, issued on January 23, 2007 by the notary of the Circassian notarial district of Unezhevov A.Zh., the wills of her deceased on July 19, 2006. Tree Tree, S.E., Compiled on March 1, 2003, in the premises of the notary office and certified by the notary of Nalchik Shogenova R.T., Duplicate Tree testament S.E., issued on January 16, 2007. Notary of the Nalchik notarial district Hanfenova G.I.
The definition of the Circassian city court of the Karachay-Cherkess Republic dated November 9, 2007, the proceedings in the case of the claim on the invalidation of the invalid testament of March 1, 2003 and its duplicate dated January 16, 2007 were discontinued.
The definition of the judicial board on civil cases of the Supreme Court of the Karachay-Cherkess Republic dated December 11, 2007. Definition of the court of first instance on the termination of the proceedings in the case in terms of the claims of the village S.Yu. Canceled and the case in this part was transferred to a new consideration in the court of first instance.
In the supervisory complaint, a representative of VE tree. - Shtembg E.V. He asks to cancel the definition of the judicial board on civil cases of the Supreme Court of the Karachay-Cherkess Republic of December 11, 2007 and to leave the definition of the court of first instance of November 9, 2007.
According to the results of the study of the arguments of the supervisory complaint of the representative of Tree V.E. - Schtemberg E.V. July 30, 2008 Deputy Chairman of the Supreme Court of the Russian Federation Nechaev V.I. The case was exterminated in the Supreme Court of the Russian Federation and its own definition of September 16, 2008, a supervisory complaint with the case was transferred to the court session of the judicial board on civil cases of the Supreme Court of the Russian Federation.
Checking within the limits of the supervisory complaint, the legality of the judicial decree of the court of cassation, as well as the case file, discussed the validity of the arguments of the supervisory complaint, the judicial board on civil cases of the Supreme Court of the Russian Federation finds the complaint to be satisfied.
In accordance with Art. 387 Code of Civil Procedure of the Russian Federation grounds for cancellation or change court decisions In the order of supervision are essential violations of the norms of material or procedural lawwho influenced the outcome of the case, without the elimination of which is impossible to restore and protect the violated rights, freedoms and legitimate interests, as well as the protection of public interest protected by law.
When considering this case of this nature, a significant violation of the norms of procedural law was admitted by the court of second instance, which was expressed in the following.
Court of First Instance Terminating the proceedings in the case of the claim with the tree claims S.Yu. On the recognition of invalid Tree testament S.E. From March 1, 2003 and the duplicate of the testament of the village of S.E., issued on January 16, 2007. Notary Hanfenova G.I., proceeded from the fact that the decision of the Izobinensky District Court of the Stavropol Territory from June 15, 2007 , accepted on the dispute between the same parties, about the same subject and on the same basis.
This decision of the Izobinensky District Court was refused to satisfy the claim by the VD tree To the tree V.E., the tree X.E., the tree of S.Yu., Town G.S., Town H.S., Town Yu.M., Town S.M. On the recognition of the invalid testament of the village of S.E., compiled on March 1, 2003, in the notary office of Nalchik CBD and certified on the same day by the notary of Nalchik - Shogenova R.T., Duplicate Tree testament S.E., issued and Certainly certified on January 16, 2007 by the notary of the Nalchik notarial district Hanfenova G.I., the certificate of the right to the inheritance in the will of January 23, 2007 issued to the name of V. V. Notary of the Circassian Notary District Union A.Zh.
The court of cassation is not agreed with the conclusion of the court of first instance and canceling the court's definition of November 9, 2007 on the termination of the proceedings in terms of the requirements of the tree S.Yu. On the recognition of invalid Tree testament S.E. dated March 1, 2003 and the duplicate of this will dated January 16, 2007, pointed to a different substantiation of the claim of the mother of the village of S.E. - V. Tree, considered by the Izobinensky District Court, and the claim of the wife of the tree S.E. - Tree S.Yu., adopted for consideration by the Circassian city court of the Karachay-Cherkess Republic, as well as on the identical subject of the participants in the process and their different procedural position in the case.
The court of cassation court considered that in the argument on the suit of the village of S.Yu. The subject part of the participants in the process is not identical to the subject of the participants in the process in the dispute under the suit V. V. T., as in these two civil affairs, persons participating in the case, although the same, but their procedural position is different. In Izobinensky district Court Tree V.D. He was the plaintiff, and Tree S.Yu. - the defendant, and on the contrary, in the Circassian city court of the tree V.D. He was the defendant, and Tree S.Yu. - plaintiff.
Meanwhile, the judicial board on civil cases of the Supreme Court of the Russian Federation finds that the conclusions of the court of cassation instance are based on the improper interpretation and application of the norms of procedural law.
According to para. 3 tbsp. 220 Code of Civil Procedure The Court terminates the proceedings in the event that it has entered into legal force and accepted on the dispute between the same parties, the decision of the court and on the same basis.
From the above procedural norm It is not necessary for the inadmissibility of the re-examination and permission of a identical dispute, that is, the dispute in which the parties are coincided, the subject and grounds.
With the proceedings of civil affairs on the suit of the village of S.Yu. To the defendants with a tree V.D. and other heirs of the tree S.E. The Circassian City Court found that a civil case on the suit of the village of V. D. was considered by the Izinnensky District Court of the Stavropol Territory. One of the defendants in this case was a tree S.Yu. At the same time, two of the three claims declared in the lawsuit V. T. (recognition of the invalid testament of the village of S.E. dated March 1, 2003, certified by the notary of Nalchik Shogenova R.T., and the duplicate testament of the tree S.E., issued on January 16, 2007. Notary Hanfenova G.I.) Fully identical to the requirements of the declared tree S.Yu. In the Circassian city court. Decision of the Izobinensky District Court of June 15, 2007. On the refusal of the lawsuit V.D. entered into legal force.
Taking into account these circumstances and on the basis of the provisions of Art. 220 Code of Civil Procedure of the Russian Federation Circassian City Court correctly pointed to the impossibility of consideration on the merits of the claims of the village of S.Yu. On the recognition of invalid Tree testament S.E. And the duplicate of this testament, since there was already a decision by the Izobinensky District Court on them, and legally stopped the proceedings in the case in the case of these requirements.
As for the argument of the court of cassation on the recipient subject of the participants in the process and their different procedural position in the case of the Izobinensky district court and the Circassian city court, the judicial board finds it based on the wrong interpretation of the prov. 3 tbsp. 220 Code of Civil Procedure of the Russian Federation. In the sense of the specified norm, the identity of the dispute on the subject line is determined by the coincidence of the parties to the dispute, and not their procedural position in it. Therefore, the identity of the dispute on a subject of a subject is the case and then when the parties (plaintiff and the defendant) changed places on another claim.
In this case, the subject of persons, both in the case considered by the Izobinensky District Court, and in the case, in the production of the Circassian City Court, the only procedural position changed. So, tree V.D. In the Izobinensky District Court was the plaintiff, and the tree S.Yu. - defendant. In the Circassian City Court of Tree V.D. became the defendant, and the tree S.Yu. - plaintiff. However, the change in the procedural position of the parties in the dispute with the coinciding subject and the basis of the claim does not eliminate the obstacles to the new consideration of the dispute on the merits. Other would contradict the law.
It is also not based on the law (part 1 of Art. 56 and part 1 of paragraph 5 of Art. 131 Code of Civil Procedure of the Russian Federation) and is refuted by the case file argument of the court of cassation on the absence of identity of the foundations of the claim by V. T. And the character of the tree S.Yu. The circumstances with which the plaintiffs associated their claims on the recognition of the testament of the tree S.E. invalid identical: doubts about the detention and distribution of the hereditary property between the heirs of the trees S.E. Only the evidence was different to which the plaintiffs referred to the confirmation of these circumstances, which does not affect the identity of the basis of lawsuits.
Taking into account the above, the definition of the judicial board on civil cases of the Supreme Court of the Karachay-Cherkess Republic dated December 11, 2007 can not be recognized as legitimate, and therefore, it is subject to cancellation, and the definition of the court of first instance is to leaving.
Guided by articles 387, 388 and 390 Code of Civil Procedure of the Russian Federation, the judicial board on civil cases of the Supreme Court of the Russian Federation determined:
determination of the judicial board of civil cases of the Supreme Court of the Karachay-Cherkess Republic of December 11, 2007. Cancel and leave the definition of the Circassian City Court of the Karachay-Cherkess Republic of November 9, 2007.
1. According to the claimed claim, identified with the initial, the dispute over which the decision has already entered into legal force?
In accordance with Part 1 of Art. 3 Code of Civil Procedure of the Russian Federation The interested person is entitled in the manner prescribed by the legislation on civil proceedings, to go to court for the protection of violated or disputed rights, freedoms or legitimate interests.
However, on the basis of paragraph 2 of Part 1 of Art. 134 Code of Civil Procedure of the Russian Federation The judge refuses to adopt of the statement In case: There is a decision of the court on the dispute between the same parties that entered into force, about the same subject and on the same basis or the definition of a court on the termination of the proceedings in connection with the adoption of the reference of the claimant from the claim or approval of the world agreement of the parties. Based on Part 3 of the same article, the refusal to accept the claim prevents the applicant's reapplies to the court with a claim to the same respondent, about the same subject and on the same basis. A private complaint may be filed for the definition of a refusal to accept the application.
Thus, the re-appeal to the court according to the claimed claim was identical with the initial, the dispute over which the decision was already allowed to be legally allowed.
2. Can the successors of the parties to declare claims to declare, if the court decision of the court entered into force on these requirements of the parties?
Based on Art. 44. Code of Civil Procedure of the Russian Federation in cases of disposal of one of the parties in the disputed or established court decision (the death of a citizen, the reorganization of the legal entity, the assignment of the demand, the transfer of debt and other cases of changes in obligations) the court allows the replacement of this party to its successor. The succession is possible at any stage of civil proceedings. All actions committed before the entry of the successor entry into the process are required for it to the extent that they would be mandatory for the person who renewed replaced.
In accordance with Part 2 of Art. 209 Code of Civil Procedure of the Russian Federation after the entry into force of the court decision, other persons participating in the case, their successors cannot again declare the same claims in the court on the same basis as well as challenge civil Procedure The facts and legal relations established by the court.
Thus, the successors of the parties cannot state the claims, if the court decision of the court entered into force on these requirements of the parties.
3. Can Rererencers of the Parties, other persons who have previously participated in the case, declare the requirements for other reasons if there is a court decision on the same requirements of the Parties?
In accordance with Part 3 of Art. 209 of the Code of Civil Procedure of the Russian Federation in case, after entering into legal, the court's decision, on the basis of which periodic payments are charged on the basis of the respondent, the circumstances affecting the determination of the amount of payments or their duration, each party, by presenting a new claim, have the right to demand changes in the size and timing of payments.
Thus, the successors of the parties, other persons who previously participated in the case are entitled to present new demands on other reasons in court, even if there is a court decision on the same requirements of the Parties.
4. Is it possible to present an identical lawsuit if it is necessary to legitimate the definition of the court on the termination of the proceedings in connection with the refusal of the claim or the statement of the settlement agreement?
In accordance with Part 2 and 3 of Article 173 of the Code of Civil Procedure of the Russian Federation, the court clarifies the plaintiff, the respondent or the parties to the consequences of refusal from the claim, recognizing the claim or the conclusion of the Glevise Agreement of the Parties. If the claimant refusal from the claim and accepting his court or approval of the World Agreement of the Parties, the court makes a definition that simultaneously terminates the proceedings. In the court definition, the conditions approved by the Justice Agreement of the Parties should be indicated. When recognizing as the defendant, the claim and the adoption of his court makes a decision on the satisfaction of the claims declared by the plaintiff.
Based on Art. 220 Code of Civil Procedure The Court terminates the proceedings in the event that there is a decision of the Court for the termination of the case in connection with the adoption of the reference of the claimant from the claim or approval of the world agreement of the parties; The plaintiff refused the claim and refusal accepted by the court; The parties have concluded a settlement agreement and it is approved by the court.
Thus, in accordance with Article 221 of the Code of Civil Procedure of the Russian Federation, proceedings are terminated by the definition of a court, which indicates that the re-appeal to the court on the dispute between the same parties, the same subject and on the same basis is not allowed. In other words, the main legal consequence termination of the proceedings- The impossibility of secondary appeal to court with a identical claim.
5. Is it possible to repeatedly appeal to the court in cases of termination of the proceedings on the case on otherwise provided for in Article 220 of the Code of Civil Procedure?
Based on Art. 220 Code of Civil Procedure of the Russian Federation Court terminates the proceedings in case:
the case is not subject to consideration and permission in court in the course of civil proceedings on the grounds provided for in paragraph 1 of the first part of Article 134 of this Code;
it has entered into force and accepted on the dispute between the same parties, on the same subject and on the same basis, the court decision or the court on the termination of the proceedings in connection with the adoption of the reference of the claimant from the claim or approval of the world agreement of the parties;
the plaintiff refused the claim and refusal accepted by the court;
the parties have concluded a settlement agreement and it is approved by the court;
there is an obligatory for the parties, adopted on the dispute between the same parties, about the same subject and on the same basis, the decision of the Arbitration Court, except if the court refused to issue an executive list to the compulsory execution of the decision of the Arbitration Court;
after the death of a citizen, which was one of the parties on the case, a controversial relationship does not allow the succession or liquidation of the organization that was one of the parties on the case, completed.
As indicated above, in accordance with Article 221 of the Code of Civil Procedure of the Russian Federation, proceedings are terminated by the definition of a court, which indicates that the re-appeal to the court on the dispute between the same parties is not allowed about the same subject. The law of exceptions from this rule does not provide.
However, it is possible to re-appeal to the court on the dispute between the same parties, about the same subject, butfor other grounds , for example, cases of divorce or claims for the recovery of alimony.
M. appealed to the declaration of illegal actions of the head of the Borovic nodal transport and expeditioning enterprise (UTPE), which refused to transport furniture due to the fact that M. does not live in the city of Borovic.
How can the interests of M.?
Based on Art. 254 Code of Civil Procedure of the Russian Federation Citizen, has the right to challenge in court a decision, action (inaction) of the authority state powerorgan local governments, officer , state or municipal employee, if he believes that his rights and freedom are violated. A citizen has the right to apply directly to the court or into a higher state of subordination by the state authority, the local government body, to the official, state or municipal employee.
In accordance with Article 1 of the Law of the Russian Federation of April 27, 1993 N 4866-I "On appealing to the court of action and decisions that violate the rights and freedoms of citizens" (with reference and extra. Dated December 14, 1995) every citizen has the right Contact a complaint to court if he believes that unlawful actions (decisions) of state bodies, local governments, institutions, enterprises and their associations, public associations or officials, civil servants violated his rights and freedoms.
In accordance with Art. 2 of the same law to actions (decisions) of state bodies, local governments, institutions, enterprises and their associations, public associations and officials, civil servants who can be appealed to court include collegial and sole acts (solutions), including On the presentation of official information as a result of which: the rights and freedoms of a citizen are violated; There were obstacles to the implementation of his rights and freedoms.
In accordance with Art. 6 of the same law on state bodies, local governments, institutions, enterprises and their associations, public associations, on officials, civil servants, the actions (solutions) of which are appealed by a citizen, the procedural duty is to document the legitimacy of the following actions (decisions); citizen exempt from the obligation to prove the illegality of the appealed (decisions), but must prove the fact of violation of their rights and freedoms.
In accordance with Part 2 of Article 14 of the Constitution of the Russian Federation, the state guarantees the equality of human rights and freedoms and citizen regardless of the place of residence.
The head of the Borovic nodal transport and expeditionary enterprise refers to officials. They committed actions related to the refusal to conclude a contract of carriage on the basis that the applicant is not a resident of Borovic. These actions of the official violate the rights and freedoms of M. and it has the right to challenge them in the order of chapter 25 of the Code of Civil Procedure of the Russian Federation.
Zinoviev, according to his wife, was recognized by the court limitedly capable. A year later, when their son was 18 years old, Zinoviev filed an application for recognition by him completely capable, referring to the fact that there are no longer disabled members in the family, and the grounds for limiting the legal capacity disappeared.
Is Zinoviev entitled to initiate such a matter against the will of his wife appointed by the trustee?
How to solve the case on the merits if the applicant's arguments will find confirmation at the court hearing?
According to Part 1 of Art. 281 Code of Civil Procedure of the Russian Federation Case on the restriction of a citizen in legal capacity due to abuse of alcohol or narcotic drugs can be initiated on the basis of the application of the members of his family, the guardianship and guardianship authority, a psychiatric or psychoneurological institution.
According to Part 4 of Art. 281 Code of Civil Procedure of the Russian Federation Statement on the restriction of a citizen in legal capacity is submitted to court at the place of residence of this citizen, and if the citizen is placed in a psychiatric or psychoneurological institution, at the place of finding this institution.
According to Part 1 of Art. 282 Code of Civil Procedure of the Russian Federation in a statement to limit the legal capacity of a citizen should be set out the circumstances indicating that a citizen, abusive with alcoholic beverages or drugs, puts his family into a serious financial situation.
The limitation of a citizen in legal capacity is also provided by Article 30 of the Civil Code of the Russian Federation, in accordance with which the abuse of alcoholic beverages or narcotic drugs, giving reason to limit the capacity of a citizen, is such an excessive or systematic consumption that is in contradiction with the interests of his family and entails Unbearable expenses money On their acquisition, which causes material difficulties and puts a family in a difficult situation. At the same time, the presence of other family members earnings or other income in itself is not a basis for refusing to satisfy the applicant's request, if the family does not receive from a person who abused spirits or narcotic drugs, the necessary material support is either forced to contain it in whole or in part.
Based on Art. 286 Code of Civil Procedure of the Russian Federation Court on the basis of the statement of the citizen himself, his representative, a member of his family, a trustee, the body of guardianship and guardianship, a psychiatric or psychoneurological institution decides to cancel the restriction of a citizen in legal capacity, if the grounds for restricting the legal capacity disappeared.
Thus, Zinoviev is entitled to apply to a statement about the recognition of his capable even against the will of his wife appointed by the trustee.
However, in this situation, the court will be forced to refuse to satisfy the request of Zinoviev, if only the absence of disabled family members is the reason for the abolition of legal limitations, since this circumstance cannot be the basis for the abolition of a citizen's restriction in legal capacity.
At a meeting of the court of cassation instance, the parties verbally stated that they decided to graduate from the world agreement, and that the procedural consequences of such an act were known to them. The judicial board in connection with this made a definition, which recorded the fact of the world agreement of the parties and decided to approve the settlement agreement, and return to the court of first instance.
Is the settlement agreement in the cassation appeal stage? Is the judicial board definition legitimate?
In accordance with Part 1 of Art. 346 Code of Civil Procedure of the Russian Federation Refusal of the Plaintiff from the claim or the World Agreement of the Parties committed after adoption cassation complaintsRepresentations should be expressed in the court of cassation instance in writing.
In accordance with Part 2 of Art. 346 Code of Civil Procedure of the Russian Federation The procedure and consequences of consideration of an application for the refusal of the plaintiff from the claim or statement of the parties to the conclusion of the settlement agreement are determined by the rules of the second and third parties 173 of this Code. When making refusal of the claimant, the court of cassation is canceled by the court decision of the court and ceases the proceedings.
For any outcome of the case, after considering the case in the cassation instance, the case is sent to the court of first instance. Nevertheless, when transferring a case to a new consideration in the cassation definition, it is indicated that the case is directed and in what composition it is subject to consideration (part 4 of article 366 of the Code of Civil Procedure of the Russian Federation).
Based on the foregoing conclusion of the settlement agreement in the cassation appeal stage is permissible.
The definition of the judicial board on the approval of the settlement agreement is legitimate, and at the same time the proceedings are terminated. But, despite the fact that the decision of the first instance is canceled, the indication in determining the return of the case to the court of first instance is unnecessary.
Metropolitan Legal Center
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On the same subject, on the same basis, on the dispute between the same parties
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MOSCOW REGIONAL COURT
Case N 44-408 / 04
(Extraction)
The Presidium of the Moscow Regional Court considered supervisory complaint to the definition of the Khimki City Court of November 28, 2004 civil business According to K. on challenging the inaction of the administration of the villageFirsanovka Khimkinsky district of the Moscow region, having heard the report of the judge of the Moscow Regional Court P., explanations K.,
installed:
the definition of the Khimkin Gorskoud of the Moscow Region dated July 28, 2003, the production was discontinued at the request of K. Reflection of the refusal of the head of the administration of P. Firsanovka in granting land plot In connection with the applicant's refusal from the requirement.
In making a statement about challenging the inaction of the head of the village administration to form the land plot, because There is a decision that has entered into force on the dispute between the same parties, about the same subject and on the same basis.
In the supervisory complaint, K. asks a definition in refusal to accept the application to cancel.
The definition of the judge of the Moscow Regional Court dated November 28, 2003 in the extermination of the case is denied.
The determination of the Chairman of the Moscow Regional Court of 15.03.2004 is estimated in Moscow regional Court.
Definition of Judge of the Moscow Regional Court F. of June 3, 2004 transferred to consideration essentially to the court of supervisory instance - Presidium of the Moscow Regional Court.
The Presidium of the Moscow Regional Court, checking the materials of the case, discussing the arguments of the supervisory complaint, finds the definition of the Khimki City Court of November 28, 2003. subject to cancellation on the following grounds.
Intercom from Art. 387 Code of Civil Procedure of the Russian Federation. The grounds for the abolition of judicial resolutions in supervisory procedures are significant violations of the norms of material or procedural law.
As can be seen from the case, K. appealed to the court with a statement about challenging the actions of the head of the administrationChimkinsky district. In the process of consideration of the case, the court in accordance with Art. 41 Code of Civil Procedure of the Russian Federation at the request of the representative of the Khimkin administration with the consent of the applicant made it possible to replace the improper party to adequately and attracted to participate in the case instead of the head of the administration of the Khimkinsky district, the head of the administration of P. Firsanovka.
Fodder during judicial trial K. filed an application for the refusal of rejection requirements for the choice and approval of the boundaries of the land plot and was filed on the recognition of the illegal inaction of the village administration, which consists in evading the formation of a land plot, i.e. Essentially, one requirement was replaced by another in accordance with Art. 39 Code of Civil Procedure of the Russian Federation.
Refusing to K. In the adoption of this statement, the court referred to the fact that in the work of the Court there is a civil case on the same subject, on the same basis, on the dispute between the same parties.
However, evidence confirming that the decision of the Khimkinsky Horsky Hostess applied for the legitimate force is on challenging the inaction of the head of administration P. Firsanovka with regard to the same subject and on the same basis, there is no case in the case file.
With such data, the definition of the trial cannot be recognized legitimate and reasonable and is subject to cancellation.
Guided by Art. 388, 390 Code of Civil Procedure of the Russian Federation, Presidium
Procedural legislation allows the court to reject the identical claims. But not always the identity of lawsuits is obvious. Consider in detail what claims are considered identical, in what cases the courts on this basis are stopped by production and how to protect their interests, bypassing the possibility of refusing to judicial protection due to the identity of the claim.
New lawsuit - well forgotten old
One of the grounds for the cessation of production in a civil case is to have the existence of a decision that has entered into force and accepted on the dispute between the same parties, on the same subject and on the same basis for the court decision or determination of the court on the termination of the proceedings in connection with the adoption of the reference of the claimant The claim or approval of the settlement agreement, as well as the decision taken between the same persons, about the same subject and on the same basis, the decision of the Arbitration Court, except if the court refused to issue an executive list to the compulsory execution of the decision of the Arbitration Court (Art. 220 Code of Civil Procedure of the Russian Federation).
A similar rate is also contained in paragraph 2 and 3 h. 1 tbsp. 150 APC RF with the only difference that arbitration process A more detailed list of cases of claims of lawsuits are given: in addition to the decision taken into force of the same persons, the same subject and on the same basis judicial act The Arbitration Court, the Court of General Jurisdiction or Judicial Act of the Arbitration Court, unless it is denied the issuance of an executive list to its enforcement, the law also specifies the judicial act of the Competent Court foreign stateUnless denied recognition and enforcement.
The basis for termination of the proceedings is the full identity of lawsuits, that is, the identification of the court considering the case, the coincidence of the subject, grounds and subject line with the previously considered affair in which the judicial act has entered into force. If at least one of the parties on a new case was not a participant in the initial trial, then it is impossible to stop the proceedings in the case with its participation (the decision of the FAS WE dated 12.04.2006 in the case No. F09-1491 / 06-C6). However, in this case, the parties of the new dispute that participated in the resolution of the previous case are exempt from the provisions of the same intensity (the decision of the FAS MO of July 1, 2014 in case No. A40-129844 / 13-98-1197).
The foundation under consideration is applied by the court only in the case when there is a complete identity on the previously considered and presented claims: they must fully coincide, the same material and legal interest should be prosecuted according to a new claim as the previously presented (the appeal definition of the Armed Forces of the Republic of Sakha ( Yakutia) from 06.11.2013 in case No. 33-4332 / 13). The absence of at least one of the criteria eliminates the possibility of termination of the proceedings (resolution of the FAS SKI dated 09.12.2004 in case No. F08-5829 / 2004-2234A).
Let's not repeat
The subject of the claim is the material and legal requirement of the plaintiff to the defendant, and the basis of the factual circumstances that underlie its requirements, the references to them justify and confirm the claims. The actual basis of the claim will differ from the previously reviewed case, even if other circumstances are given in a suit: for example, a new solution tax author demanding to pay off arrears mandatory plates to the budget (the appellate definition of the Kirov Company of December 16, 2014 in case No. 33-4389).
In other words, the cessation of production in the case is an extreme measure that is applied in exceptional cases when the court established the full identity of lawsuits and the lack of foundations re-consider the same thing that was already permitted by the judicial act. The termination of the proceedings makes it possible to eliminate the issuance of various judicial acts on similar cases.
If, for example, the plaintiff filed a requirement for recovery of unjust enrichment, which was previously considered by the court regarding the same defendant, then it is necessary to find out whether the periods are coincided, for which unjust enrichment is charged. It is equally solved by the question of both violation cases exceptional rights For the means of individualization: if the periods during which violations were allowed, do not coincide, then there are no grounds for the termination of the proceedings in the case (Resolution of the AS MO of 08.05.2013 in case No. A40-132161 / 12-19-1104).
The plaintiff can re-apply for debt recovery if he refers to other grounds in his new lawsuit: if he was refused to recover bills on the motive of the defect form security, It is not deprived of the possibility of demanding the recovery of debt under the document as by the usual debt receipt (paragraph 6 of the review of the practice of resolving disputes related to the use of bills in the economic turnover, approved the information letter of the Presidium of the Supreme Arbitration Court of the Russian Federation dated July 25, 1997 No. 18).
The plaintiff has the right to recover the balance of non-verbal debt or a penalty (the decision of the Presidium of the Supreme Arbitration Court of the Russian Federation of July 27, 2004 No. 2353/04), except for the case when a global agreement was concluded in the first case, since in this case, due to the principle of Estoppel, the plaintiff is deprived of the right to put forward new requirements. With regard to the World Agreement in the Text of the World Agreement, the condition for the resolution of certain requirements related to the subject of the dispute, the parties lose the right to declare them further. Such an approach does not violate the balance of interests of the dispute participants, since they conclude a settlement agreement, based on existing realities and counting on the liquidation of the dispute completely without risk for themselves additional requirements from the procedural opponent. In other cases, the settlement agreement could not be concluded at all (the decision of the AC MO of 09.10.2014 N F05-11011 / 14).
The conclusion of the settlement agreement meets the interests of both parties, and the debtor will have the right to count on the termination of any subject matter of the material and legal nature associated with violation of obligations, including the payment of the fine. In other cases, the parties should have to provide in the world agreement for such responsibility. Risk negative consequences The lender bears who possessed the relevant right and should have understood that judicial protection should be as efficient and promote the restoration of his violated rights, and the World Agreement should entail the termination of the conflict from both the main obligations and all additional obligations related to it. Having put forward new requirements, the corresponding side of the dispute acts inconsistently and levels the consequences of the termination of the dispute, which contradicts legal Nature World Agreement (Resolution 9 AAS dated 13.04.2015 N 09Ap-10188/2015).
Second occupancy with new requirements
Having received a refusal to the previously discussed case, the plaintiff is not deprived of the opportunity to choose another way of protection, which will allow him to defend its legitimate interests.
If the plaintiff refused to recover the debt on the issued loan on the motive that the occurrence between him and the defendant of the borrowed obligation, it is not deprived of the opportunity to declare the recovery of money on the other basis (compensation of losses, recovery of unjust enrichment, etc.). When refusing a claim for recognition apartment house Emergency and providing a comfortable residential premises The plaintiff is not deprived of the opportunity to submit a new claim for the recovery of its losses in the form of expenses incurred for the repairs of the residential premises, since these requirements have a different subject (the appellate definition of the Ryazan regional system dated 04/02/2014 in case No. 33-657).
When refusing a lawsuit on eviction and deregistration of a citizen on the motive of the lack of right to declare such a claim for the claimant in the future defeated rights It is possible to present it if he changes the actual circumstances: for example, earlier he was not the owner of the apartment, from which he wanted to evict the defendant, and now he became a deal or on another reason that it gives him the right to raise the issue of termination of the right to use the residential premises The defendant (the appeal definition of Kemerovo regional office of 21.10.2014 No. 33-10434).
In a situation where the dispute arose from one legal relationship, the permission of the court on the merits of certain requirements does not prevent the plaintiff to further declare new requirements if they have not yet been considered. If, let's say, the plaintiff has already implemented his right to make a claim for damages in the form of property insurance costs from death and damage, it is not deprived of the right to present a new claim for the recovery of civil liability insurance costs, and the Court must consider this case on the merits ( Resolution of the FAS BJO dated November 14, 2012 No. A58-2192 / 2012).
The plaintiff who realized the right to reimburse the damage caused to his health in result of an accidentNot deprived of the opportunity to recover from the defendant other expenses for health restoration, if after treatment he will have the signs of new diseases that were not previously known. IN initial lawsuit The requirements of the plaintiff were not justified by reference to a specific disease, so in the second lawsuit, it is entitled to demand the full reimbursement of all incurred costs (the appellate definition of Krasnoyarsk regional Court from 06/17/2013 in case No. 33-5250 / 2013).
However, it cannot be considered a new claim that has previously already declared with exactly the same factual grounds, and in a new lawsuit, a different methodology or a formula for calculating debt, interest, other payments, which were previously not used, was not used, as well as submission to them new evidence. , since these circumstances do not indicate differences in the filed claims (Resolution of the FAS WE, from 09/29/2009 N F09-7297 / 09-C6).
When it is impossible to stop production
It should be borne in mind that the complete identity of lawsuits is only in the case when the parties participated in the previously considered case, that is, when they were notified of the time and place of the trial. If they did not appear in court hearingThey are still considered to be involved in the presence of evidence of their proper notice, since they were given a procedural opportunity to participate in the proceedings of the case and bring their arguments.
It is not considered to participate in consideration of a similar case for the purpose of applying the rules on the full identity of lawsuits when the plaintiff had the opportunity to take part in the first case, but the law did not oblige this to do and did not exclude the possibility of contacting independent claims.
So, in one case, the court, stopping the proceedings on the exterior of the property from someone else's illegal possession and the establishment of a common regime dolly ownership on a row non-residential premises, I came from the fact that the previously arbitral tribunal was considered a similar case on the claim of a group of persons in accordance with Chapter 28.2 of the APC RF, and the plaintiff had the opportunity to join the specified claim, but did not do this.
However, a higher court agreed with such an approach, indicating that in the second case there is no complete identity of lawsuits, the subject line is distinguished, given that the plaintiff did not participate in the consideration of the first case. The existence of a law enshrined the opportunity to take part in the consideration of the case on the claim of a group of persons is due to the goals of the procedural economy and ensuring the possibility of a more effective judicial protection of all participants in the process. However, the plaintiff is not deprived of the possibility of refusing at its discretion from the use of this procedural mechanism and present its separate claim in an independent manner, which eliminates the possibility of termination of production in such a case (the appellate definition of the Moscow City Court of 24.06.2014 in case No. 33-22400).
The full identity of lawsuits will also not be in a situation where a prosecutor in defense of the rights and legitimate interests of an indefinite range of persons appeared earlier, and the plaintiff himself participated in the resolution of the first dispute as a third party, that is, already implemented the right to judicial protection . The presentation of the claim by the prosecutor in defense of the interests of an indefinite circle of persons does not affect the identity of court cases and does not exclude the right of the plaintiff to contact their claim in an independent manner.
This conclusion in one case came the court, satisfying a claim for the obligation to restore the power supply of the disconnected cathode station located on the outer wall of the apartment building and intended for the protection of steel gas pipelines from electrochemical corrosion. Despite the fact that the prosecutor's claim was already satisfied, the court acknowledged that the grounds for termination of the proceedings were not available, since the plaintiff acts independently and does not depend on the proceeding actions of the prosecutor (the decision of the Presidium of the CAT rate of the Russian Federation of 05.03.2013 No. 13874 /12).
Even in the presence of a complete identity of lawsuits, the court is not entitled to terminate the proceedings, if it is established that the relations of the parties are the resultant character (the appellate definition of the Moscow City Court of 18.02.2014 in case No. 33-3087). If the previously considered place was determined by the place of residence a minor child With one of the parents, the judicial act, the judicial act of this is not an obstacle in order to continue to re-put the court to the court to determine the place of residence of the child.
This may be due, in particular, with a worsening housing conditions The parent, with whom the child stayed to live, his material situation and other factors. In such a situation, leaving the child with him violates his rights and legitimate interests, and such a formal criterion, as the identity of lawsuits, will not be able to be sufficient to refuse to considery on the merits of a new claim.
It also applies to the case when the spouses wanted to divorce, then changed their mind and stopped production, and then changed their mind and decided to dilute. The presence of a judicial act that has entered into legal force on the termination of production due to the refusal of the claim or with the conclusion of the settlement agreement does not impede the consideration of the new case, since the relations of the parties are the resultant nature.