Lecture No. 1. Civil procedural law

1. The concept of civil procedural law and civil process

Civil procedural law and civil procedure are two concepts that correlate as general and particular.

Civil procedural law - an independent branch of law in the system of Russian legislation, which is a set of rules governing the activities of courts of general jurisdiction, as well as aimed at protecting the violated and contested rights and legitimate interests of citizens and organizations entitled to protection.

When defining the term "civil process", it is necessary to consider it in several aspects - as an academic discipline, science and practical activity in the consideration and resolution of civil cases.

Civil process as an academic discipline is a system of knowledge defined by the educational process in the field of legislation and the practice of its application.

Civil procedure as a science is a set of theories, teachings, doctrines, as well as prescriptions in the field of civil justice. The civil process as a practical activity for the consideration and resolution of civil cases is the activity of the court aimed at protecting the violated or contested right and regulated by the norms of civil procedural law.

The tasks of the civil process according to Art. 2 of the Civil Procedure Code of November 14, 2002 No. 138-FZ (CPC RF) are:

1) correct and timely resolution and consideration of civil cases in order to protect violated or disputed rights, freedoms and legitimate interests of citizens, organizations, rights and interests of the Russian Federation, constituent entities of the Russian Federation, municipalities, other persons who are subjects of civil, labor or other legal relations;

2) contributing to the strengthening of law and order, the prevention of offenses, the formation of a respectful attitude towards the law and the court.

If we compare the tasks assigned to the court of the Code of Civil Procedure of the Russian Federation and the tasks indicated in the Code of Civil Procedure of the RSFSR, then there is a significant difference. In the Code of Civil Procedure of the RSFSR, the first task of civil proceedings is "the correct and prompt consideration and resolution of civil cases." Timely does not mean fast. You should not rush to resolve a civil case, even if the procedural deadlines expire.

Timeliness means that the civil procedural legislation establishes deadlines beyond which neither the court nor the participants in civil proceedings should go beyond. However, the deadlines may be extended if it is necessary to clarify the circumstances affecting the issuance of a correct and lawful court decision.

The effect of civil procedural law in time means that the court adopts the civil procedural law in force at the time of the commission of procedural actions, regardless of which law was in force at the time of the occurrence of civil legal relations.

Action of the law in space. The procedure for legal proceedings is the same throughout the entire territory of the Russian Federation. All courts in the Russian Federation apply the same procedural legislation. None of the participants in civil procedural legal relations can establish any procedural rules.

2. Subject and method of civil procedure

The subject of civil procedural law are public relations arising between the subjects of civil procedural law in the field of civil proceedings. In addition, the subject of civil procedural law are also the rules of law governing the administration of justice in the Russian Federation.

Legal regulation method civil procedural law is a set of techniques, methods and means by which the Russian state regulates social relations arising from and in connection with the administration of justice by the courts. As a rule, scientists-theorists distinguish two types of methods of legal regulation: imperative (the method of authoritative prescriptions) and dispositive (freedom of administrative actions within the framework of the law). For civil procedural law, the principle of imperative-dispositive is most characteristic. Dispositiveness is manifested in the fact that the participants in the civil process are endowed with a scope of rights that are enshrined in the Code of Civil Procedure of the Russian Federation. Imperativeness is expressed in the mandatory participation of a court exercising judicial power on behalf of the Russian Federation.

3. Ways and forms of protection of the violated right of subjects of civil legal relations

Article 12 of the Civil Code of the Russian Federation (CC RF) provides eleven ways to protect civil rights (the list is not exhaustive, that is, the protection of rights can be carried out in other ways provided for by laws), one of which is the self-defense of rights.

Self defense rights a person whose rights and legitimate interests are disputed or violated, is an action aimed at restoring a violated or disputed right without normative and defining regulations in the form of measures aimed at suppressing offenses.

Administrative protection of the violated or disputed right or legitimate interests is carried out by state authorities or local governments, whose competence includes the decision to restore the violated or disputed right outside of any judicial procedure. An administrative decision of state authorities and local self-government bodies may be appealed in court. In addition, both the action and inaction of state authorities and local self-government bodies can be appealed in court. According to Art. 46 of the Constitution of the Russian Federation "everyone is guaranteed judicial protection of his rights and freedoms." Judicial protection has a number of features and differences from other means of protecting violated or contested rights, it:

1) is carried out only by the court;

2) is carried out on the basis of the application of the norms of civil, labor, family, tax and other substantive branches of law;

3) is carried out with the participation of the parties and other interested parties;

4) is carried out in the procedural form established by the civil procedural legislation.

4. Stages of the civil process

Justice is carried out in strict accordance with procedural legislation. The activities of the court, aimed at protecting and restoring the violated or disputed rights and legitimate interests, are carried out according to strictly regulated stages. There are different opinions about the number of stages in a civil process. Most authors believe that there is six independent stages of the civil process:

1) initiation of civil proceedings. At this stage of the civil process, the issue of the possibility of starting civil proceedings is decided on the basis of the submitted statement of claim, statement, or complaint.

When filing an application or complaint by a person whose right is violated or disputed, the court may make the following decision:

a) refuse to accept the application (Article 134 of the Code of Civil Procedure of the Russian Federation), if:

▪ this application is not subject to consideration and resolution in civil proceedings;

▪ the application was submitted in defense of the rights, freedoms or legitimate interests of another person by a state body, local government body, organization or citizen who are not granted such a right by law;

▪ there is a court decision that has entered into legal force on a dispute between the same parties, on the same subject and on the same grounds;

▪ there is an arbitration court decision that has become binding on the parties and was adopted on a dispute between the same parties, on the same subject and on the same basis.

On the refusal to accept the application, the judge issues a reasoned ruling, which must be handed over or sent to the applicant within 5 days;

b) return the application (Article 135 of the Code of Civil Procedure of the Russian Federation), if:

▪ the case is beyond the jurisdiction of this court;

▪ the application was submitted by an incapacitated person;

▪ before the court issued a ruling to accept the application, the plaintiff received an application to return the application;

▪ the application is not signed or signed and filed by a person who does not have the authority to sign it and present it to the court.

Within 5 days from the date of filing the application, the judge issues a reasoned ruling, in which he indicates how to eliminate the circumstances that prevent the initiation of a civil case;

c) leave the application without movement (Article 136 of the Code of Civil Procedure of the Russian Federation). The judge, having established that the application filed with the court without complying with the requirements, established by Article. 131 and 132 of the Code of Civil Procedure of the Russian Federation, issues a ruling on leaving the application without movement, which is notified to the person who submitted the application, and provides him with a reasonable time to correct the shortcomings;

d) accept the application if it meets all the requirements for it. In this case, the court issues a ruling on accepting the application and initiating civil proceedings;

2) preparation of the case for trial. This is an independent stage of the civil process, at which the preparation, resolution and clarification of various issues related to the procedural actions of the participants in the civil process are carried out in order to make a correct and legal judgment at the trial stage. At this stage, the following issues are resolved:

a) determining the circumstances that are important for the proper consideration and resolution of the case;

b) determination of the sufficiency of evidence in the case;

c) study of the facts of missing the deadlines for applying to the court and the statute of limitations.

If a court session is held at this stage of the civil process, then it is called preliminary (Article 152 of the Code of Civil Procedure of the Russian Federation). The preliminary hearing is held by a single judge. The parties shall be notified of the time and place of the preliminary court session. The parties in the preliminary court session have the right to present evidence, argue, file motions. In the presence of circumstances (such as the death of a citizen, if the disputed legal relationship allows succession; the recognition of a party as incapable or the absence of a legal representative of a person recognized as incapacitated; participation of the defendant in hostilities, performing tasks in a state of emergency or martial law; impossibility of considering this case until the resolution of another cases considered in civil, administrative or criminal proceedings; court appeals to the Constitutional Court of the Russian Federation with a request on the compliance of the law to be applied with the Constitution of the Russian Federation; the presence of the party in a medical institution; search for the defendant; appointment by the court of an expert examination; appointment by the body of guardianship and guardianship of an examination of living conditions adoptive parent in the case of adoption (adoption) and other cases affecting the rights and legitimate interests of children; the case is not subject to consideration and resolution in court in civil proceedings; there is a court decision that has entered into legal force on a dispute between do the same parties; the plaintiff abandoned the claim and the refusal was accepted by the court; the parties entered into a settlement agreement and it was approved by the court;) the proceedings in the preliminary court session may be suspended and terminated, the application left without consideration. A court decision shall be issued on suspension, termination of proceedings on the case, on leaving the application without consideration. A private complaint may be filed against the ruling of the court. A protocol is drawn up on the holding of a preliminary court session, to which the requirements provided for in Art. 229, 230 Code of Civil Procedure of the Russian Federation;

3) consideration or resolution of a civil case on the merits. The essence and significance of this stage of the civil process lies in the fact that it is at it that the resolution or consideration of the case on the merits, the resolution of the dispute about the right, through the issuance of a court decision on the protection of the violated or contested right, takes place. It is at this stage of the civil process that the main task of civil proceedings is realized - the protection of the rights and legitimate interests of citizens and other persons involved in the case. A fair trial within the time limits established by law helps to educate citizens in respect for the court, raises the level of legal culture;

4) revision of a court decision that has not entered into legal force in a court of second instance (cassation and appellate instances). At this stage of the civil process, the legality and validity of decisions, rulings, decisions of the court of first instance are checked. If a complaint is filed against the decision of the magistrate, then the proceedings are called appeal. If the complaint is filed against the decision of a federal judge, then the proceedings are called cassation;

5) revision by way of supervision of judicial decisions that have entered into legal force. This stage of the civil process is called exceptional, since in this case it is possible to file a complaint against a court decision as a whole or in part only after the court decision has entered into force. It should also be noted that the basis for filing a complaint against a court decision is a significant violation of substantive or procedural law;

6) revision of court decisions that have entered into force, due to newly discovered circumstances. This stage of the civil process acts as a procedural guarantee for the protection of the rights and legally protected interests of civil procedural relations. The stage involves the identification of newly discovered means of proof that are essential for the outcome of the case, which existed at the time of the resolution of the civil case, but for some reason were not known to the participants in the process.

D. A. Barykin identifies another stage of the civil process - enforcement proceedings (forced execution of court decisions) [1]. Enforcement proceedings as a stage of civil proceedings are also distinguished by L.P. Dekhtereva, V.V. Pivulsky, O.A. Shugaeva, considering that this is the stage of civil proceedings at which bailiffs execute acts of the court, as well as other bodies that are granted the right to impose obligations on citizens and legal entities to transfer funds and other property or to perform certain actions (or refrain from performing these actions) [2].

M.A. Vikut believes that before the reform of enforcement proceedings in 1997, the process of execution of judicial acts belonged to the stages of civil proceedings, but currently executive legal relations are the subject of regulation of a special, independent branch of Russian executive law [3].

In the Code of Civil Procedure of the RSFSR, at the stage of revising decisions, court decisions that did not enter into force, there was no appellate instance, there was only a cassation instance. This is explained by the fact that at that time there was no institution of magistrates, since the appellate instance considers judicial decisions of magistrates that have not entered into legal force.

It should be noted that the passage of all stages of the civil process is not mandatory. Completion of a civil case is possible at the initial stage of "initiation of civil proceedings", the person who filed an application or complaint has the right to return it. But the actions of the person who submitted the application and returned it entail legal consequences. This person can no longer apply to the court with this claim on the same grounds. A civil case may be completed at the stage of "consideration or resolution of a civil case on the merits" through the conclusion of a settlement agreement by the parties. An amicable agreement must be concluded before a court decision is made. A review of a court decision that has entered into legal force, as well as a review of court decisions on newly discovered circumstances, take place only if there are specific grounds provided for by the Code of Civil Procedure of the Russian Federation, and can also be carried out only by persons participating in the case.

5. Types of civil proceedings

According to the Code of Civil Procedure of the Russian Federation, there is seven types of production:

1) writ proceedings. This is the only type of proceedings in which there are no two stages of civil proceedings (preparing the case for trial, consideration and resolution of the civil case on the merits). In writ proceedings, a court decision is not made, but a court order is issued - a court decision made by a single judge on the basis of an application for the collection of sums of money or for the recovery of movable property from the debtor;

2) claim proceedings. Claim proceedings are characterized by all stages of the civil process. Filing a claim by a person whose rights have been violated (plaintiff), which is sent to the alleged violator (defendant), involves the use of a means of protecting his violated or disputed right. Claim proceedings are initiated by filing a document - a statement of claim;

3) special production. In special proceedings there is no dispute of law. Facts and information of legal significance that cannot be obtained out of court are established in special proceedings. These are facts such as the adoption of a child, restriction of the legal capacity of citizens, recognition of a movable thing as ownerless, forced hospitalization of a citizen in a psychiatric hospital, etc.;

4) proceedings in cases arising from public legal relations. This proceeding is intended to resolve cases related to challenging regulatory legal acts in whole or in part; challenging decisions, actions (inactions) of state authorities, local governments, officials, state and municipal employees; protection of voting rights or the right to participate in a referendum of citizens of the Russian Federation;

5) proceedings in cases involving foreign persons. The peculiarity of this type of proceeding is that one of the parties to the civil process is a foreign person (foreign citizen, foreign organization, international organization);

6) proceedings in cases of challenging decisions of arbitration courts and issuing writs of execution for the forced execution of decisions of arbitration courts. By written agreement of the parties, a dispute about the right may be considered by an arbitration court. The decision of the arbitration court can be challenged in a court of general jurisdiction, which is a guarantee of protecting arbitration courts from arbitrariness;

7) proceedings related to the execution of court decisions and decisions of other bodies.

The Code of Civil Procedure of the RSFSR provided for only four types of production:

1) action proceedings;

2) proceedings in cases arising from administrative-legal relations;

3) special production;

4) enforcement proceedings.

Writ proceedings in civil proceedings did not exist at that time. Proceedings in cases arising from public legal relations were part of proceedings in cases arising from administrative-legal relations. The civil procedural rights of foreign persons and stateless persons were mentioned in the special section "Civil procedural rights of foreign citizens and stateless persons, claims against foreign states, letters of request and decisions of foreign courts, international treaties and agreements". It follows from the section that foreign persons and stateless persons have procedural rights and procedural obligations on an equal footing with Soviet citizens. At the same time, it is stipulated that restrictions on the procedural rights and freedoms of foreign citizens, enterprises, organizations can be established only if there are restrictions on the rights and freedoms of Soviet citizens, enterprises, organizations by the state whose citizenship is foreign citizens. In the Code of Civil Procedure of the Russian Federation, challenging the decisions of arbitration courts and issuing writ of execution for the enforcement of decisions of arbitration courts is not allocated to independent proceedings. Despite this, this type of production existed. According to paragraph 4 of part 2 of Art. 141 of the Code of Civil Procedure of the RSFSR, "when preparing a case for trial, the judge explains to the parties their right to apply for resolution of the dispute to an arbitration or comrades' court and the consequences of such an appeal." There are three appendices to the Code of Civil Procedure of the RSFSR. Appendix No. 3 is called "Regulations on Arbitration Courts", where it is established that citizens can refer any dispute that has arisen between them to an arbitration court, with the exception of disputes arising from labor and family relations. An agreement on the transfer of a dispute to an arbitration court must be concluded in writing. In Art. 17, 18, 19 provides that the decision of the arbitral tribunal, not executed voluntarily, may be enforced on the basis of a writ of execution issued by the people's court. When issuing a writ of execution, the judge checks whether the decision of the arbitration court contradicts the law and whether there was a violation of the rules established by the Regulations on Arbitration Courts when it was issued. An appeal or protest may be filed against a people's judge's refusal to issue a writ of execution within ten days from the day of the refusal.

6. The system of civil procedural law

Civil procedural law is an independent branch of law and has its own subject, method, system.

System of civil procedural law consists of two parts: General and Special.

a common part contains the main provisions applicable to all types of proceedings and all types of stages: fundamental principles, jurisdiction, jurisdiction, representation, proof and evidence, etc.

Special part includes specific types of proceedings (writ, action, special, etc.), regulates the procedure for passing through the stages of the civil process, etc. The entire system of civil procedural law is reflected in the Code of Civil Procedure of the Russian Federation, which consists of seven sections. Each section is divided into chapters, forty-seven chapters in total. Each chapter consists of articles, for a total of four hundred and forty-six articles.

7. Sources of civil procedural law

Sources of civil procedural law - a set of legal norms regulating the activities of persons participating in civil proceedings, as well as the activities of courts of general jurisdiction and justices of the peace in civil cases. Sources in the civil process represent a hierarchical system. The dominant position is The Constitution of the Russian Federation. It has the highest legal force, direct action and is applied throughout the territory of the Russian Federation. Laws and other normative acts adopted in Russia must not contradict the Constitution of the Russian Federation. In Art. 118 of the Constitution of the Russian Federation stipulates that justice in the Russian Federation is carried out only by the court. Judicial power is exercised through constitutional, civil, administrative and criminal proceedings. The creation of emergency courts is not allowed. In Art. 120, 121, 122, 123 of the Constitution of the Russian Federation are established fundamental principles of all types of production:

1) independence of judges;

2) irremovability of judges;

3) immunity of judges;

4) open trial of cases in all courts;

5) competitiveness and equality of the parties.

The next source of civil procedural law is Civil Code of the Russian Federation, which entered into force on January 1, 2003 (with the exception of the chapters on cassation and supervisory appeal of court decisions, which entered into force on July 1, 2003). The Civil Procedure Code of the Russian Federation is a set of norms of civil procedural law governing social relations arising in the course of carrying out their activities by the courts, as well as in the process of protecting citizens of violated or contested rights and legitimate interests.

The third place in the hierarchical system of sources of civil procedural law is occupied by federal constitutional laws and federal laws, in one way or another containing the rules governing civil law relations. In particular, such laws are the Federal Constitutional Law of December 31, 1996 No. 1-FKZ "On the Judicial System of the Russian Federation"; Federal Law No. 31-FZ of May 2002, 63 "On Advocacy and the Bar of the Russian Federation"; Law of the Russian Federation of June 26, 1992 No. 3132-I "On the Status of Judges in the Russian Federation"; Federal Law No. 24-FZ of July 2002, 102 "On Arbitration Courts in the Russian Federation"; Federal Law No. 17-FZ of December 1998, 188 "On Justices of the Peace in the Russian Federation"; Federal Law of July 21, 1997 No. 119-FZ "On Enforcement Proceedings", etc.

Decrees of the Government of the Russian Federation are also sources of civil procedural law. In Art. 446 of the Code of Civil Procedure of the Russian Federation provides a list of property that cannot be levied under executive documents. One of the types of property that cannot be foreclosed on are items of ordinary home furnishings and household items, personal items (clothes, shoes, etc.), with the exception of jewelry and other luxury items. In enforcement proceedings, the question often arises about the transfer of arrested or seized property for storage. Also, quite a lot of nuances are encountered directly in the process of expropriating or seizing property, which is collected under executive documents. To resolve these issues, it is necessary to refer to Decree of the Government of the Russian Federation of July 7, 1998 No. 723 "On Approval of the Regulations on the Procedure and Conditions for the Storage of Arrested and Seized Property."

Sources of civil procedural law are also norms of international treaties. Part 4 Art. 15 of the Constitution of the Russian Federation establishes that the generally recognized principles and norms of international law and international treaties of the Russian Federation are an integral part of its legal system. If an international treaty of the Russian Federation establishes rules other than those stipulated by law, then the rules of the international treaty shall apply. Part 2 Art. 1 Code of Civil Procedure of the Russian Federation duplicates this provision.

In the absence of a rule of procedural law governing relations that arose in the course of civil proceedings, federal courts of general jurisdiction and justices of the peace apply the rule governing similar relations (law analogy), and in the absence of such a rule, they act on the basis of the principles of the administration of justice in the Russian Federation (law analogies). ).

Author: Gushchina K.O.

>> Forward: Principles of civil procedural law (The concept and meaning of the principles of civil procedure. Organizational principles of civil procedure. Functional principles of civil procedure)

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