Lecture No. 10. The decision of the court of first instance

1. The concept and essence of the court decision

Judgment - an act of expression of the will of a public authority, which is expressed in the application of a rule of law to a specific legal relationship, in the specification of the legal relationship, in the authoritative confirmation of the legal relationship, law and fact, and in an order on a specific occasion addressed to the parties and other persons and organizations to whom this matter concerns [9 ].

The case is decided on the merits by means of a court decision. The judgment is issued on behalf of the Russian Federation and only in the deliberation room, where only the judges considering the case, or the judges who are members of the court, can be present. No outsider should enter the deliberation room during the deliberations of judges. Deviation from this norm may be the basis for the recognition of a court decision as illegal by a higher court. The deliberation room rule is aimed at ensuring the principle of independence of judges and their subordination only to the Constitution of the Russian Federation and federal laws.

In the case of a collegiate composition of the court, issues are resolved by voting, while the presiding judge votes last. No judge may abstain from voting. If a decision is made by a majority of votes, with which one of the judges, who are members of the court considering the case, does not agree, then the latter has the right to attach his decision in writing to the main court decision. However, he does not have the right to refuse to sign a judgment issued by a majority vote.

The court decision is made in pursuance of the tasks of civil proceedings specified in Art. 2 Code of Civil Procedure of the Russian Federation. First of all, the court decision must be correct and issued within the time limits established by law. According to the resolution of the Plenum of the Supreme Court of the Russian Federation of December 19, 2003 No. 23 "On the Judgment", the correct decision will be such a decision, which is decided in accordance with the requirements of procedural and substantive law. And also the decision is legal if it does not violate the norms of procedural and substantive law. According to Art. 195 Code of Civil Procedure of the Russian Federation judgment must be justified. A court decision is justified only if the circumstances relevant to the case are confirmed by the evidence presented, which, in turn, comply with the requirements of procedural legislation, i.e., are relevant to this case, are sufficient, admissible by the court in the case under consideration, are not claimed in violation of the law.

When making a decision, the court decides the following questions:

evaluates the evidence, determines what circumstances relevant to the consideration of the case have been established, what circumstances have not been established, what are the legal relations of the parties, what law should be applied in this case and whether the claim is subject to satisfaction. The court, deeming it necessary to clarify new circumstances that are important for the consideration of the case, or to examine new evidence, issues a ruling on the resumption of the trial. After the end of consideration of the case on the merits, the court again hears judicial debate. The court decides on the claims submitted by the plaintiff. The court has no right to go beyond the limits of the claims made by the plaintiff. However, this action by the plaintiff is possible in cases provided for by federal law.

Amendments and additions may be made to the court decision, but they must be certified by the signatures of the judges participating in the consideration of the case.

The court may also issue an additional court decision, which can be appealed within ten days, as well as the main court decision, and must also meet the requirements provided for a court decision by procedural legislation.

An additional decision can only be made if:

1) on any requirement, on which the persons participating in the case presented evidence and gave explanations, no decision was made;

2) the court, having resolved the issue of law, did not indicate the amount of the amount awarded, the property to be transferred, or the actions that the defendant is obliged to perform;

3) the court has not resolved the issue of court costs.

Thus, an additional decision can be made only on the basis of those circumstances that occurred during the trial and which, in turn, were not taken into account by the court when issuing the judgment. Newly arisen circumstances or other reasons that may entail various legal consequences for the participants in the process cannot be considered separately from the main proceedings of the case, and a decision cannot be made on them as an additional one. When these circumstances arise, a court session is scheduled and the case is resolved on the merits in conjunction with all available evidence and facts, after which the main court decision is issued.

2. Content of the judgment

Judgment is always expressed in writing. It should consist in four parts: introductory, descriptive, motivational and resolutive.

In the introductory part of the court decision, the date and place of the adoption of the court decision, the name of the court that made the decision, the composition of the court, the secretary of the court session, the parties, other persons participating in the case, their representatives, the subject of the dispute or the stated claim must be indicated.

Descriptive part The court decision must contain an indication of the plaintiff's claim, the defendant's objections and explanations of other persons participating in the case.

In the motivation part court decisions must indicate the circumstances of the case, established by the court; the evidence on which the court's conclusions about these circumstances are based; arguments on which the court rejects certain evidence; laws that govern the court. If the claim is recognized by the defendant, the reasoning part of the court decision may indicate only the recognition of the claim and its acceptance by the court. In case of dismissal of the claim in connection with the recognition of unjustified reasons for missing the limitation period or the deadline for applying to the court, the reasoning part of the court decision indicates only the establishment of these circumstances by the court.

Operative part The court decision must contain the court's conclusions on the satisfaction of the claim or on the refusal to satisfy the claim in whole or in part, an indication of the distribution of court costs, the term and procedure for appealing the court decision.

The decision of the court is made immediately after the hearing of the case. Drawing up a reasoned court decision may be postponed for a period of not more than 5 days from the date of the end of the trial of the case, but the operative part of the decision must be announced by the court at the same court session in which the trial of the case ended. The announced operative part of the court decision must be signed by all judges and attached to the file.

It is worth noting that if the court took advantage of the delay provided by law to draw up a reasoned decision, then the time limits for appealing the decision in the court of second instance are calculated after the presentation of the final court decision, i.e. if the court, after the announcement of the operative part on the fifth day, submitted the court decision in final form, the period for appeal ends 10 days after the final judgment is issued. If the court of second instance refuses to accept the cassation or appeal complaint due to the missed appeal period, it is necessary to apply to the court for the restoration of the missed procedural period for a good reason. In this case, the court is not competent to refuse to restore the missed period.

3. Determination of the court of first instance

One of the types of judicial decisions of the court of first instance is the ruling of the court.

Court ruling - this is a court decision that does not resolve the case on the merits, but which contains answers to many procedural questions that arise during the consideration and resolution of a civil case. All court rulings are issued subject to all established requirements in the deliberation room. However, in the process of considering and resolving a civil case, simple issues arise, on which the law allows the courts not to retire to the deliberation room and make a decision in the courtroom. The court ruling is announced immediately after its issuance (Article 224 of the Code of Civil Procedure of the Russian Federation).

The court ruling must indicate (Article 225 of the Code of Civil Procedure of the Russian Federation):

1) the date and place of the issuance of the ruling;

2) the name of the court that issued the ruling, the composition of the court and the secretary of the court session;

3) the persons participating in the case, the subject of the dispute or the stated claim;

4) the issue on which the ruling is made;

5) the motives on which the court came to its conclusions and the reference to the law by which the court was guided;

6) a court decision;

7) the procedure and term for appealing the court ruling, if it is subject to appeal.

Despite the fact that the ruling can also be made in the courtroom, without being removed to the deliberation room, it must also contain all of the above points.

In the legal literature, the definitions of the court of first instance qualified by content: preparatory, suppressive and final definitions.

preparatory definitions call the rulings issued by the court in the course of resolving and considering a civil case, aimed at resolving issues of a preparatory nature. These rulings are intended to properly prepare a civil case for trial and ensure that a correct, lawful and reasonable court decision is made (for example, a ruling on accepting a statement of claim and accepting it for proceedings, a ruling on preparing a case for trial, a court ruling on a letter of request and etc.).

Repressive definitions The literature considers a court ruling to refuse to accept a statement of claim, a court ruling to leave a statement of claim without consideration, a court ruling to refuse to approve a settlement agreement, a court ruling to refuse to accept an application to cancel a default decision, etc.

Final definitions are issued by the court at the end of civil proceedings, if it is impossible to issue a court decision. For example, if the plaintiff refuses the claim, a ruling is issued to terminate the proceedings in this case, and when the parties conclude a settlement agreement, a ruling is issued to approve the settlement agreement and terminate the proceedings. Proceedings on the case are terminated without issuing a court decision if another court has issued a court decision on the same grounds, on the same subject and between the same parties, etc.

A special place in the civil process is occupied by private definitions. If cases of violation of the law are revealed (for example, in the actions of persons participating in the case; falsified materials are presented; when claiming evidence, a violation of their powers by officials, etc.) is revealed, the court may issue a private ruling, which it must send to the relevant organizations or relevant officials .

In turn, officials and relevant organizations within 1 month must send a notification of the measures taken on the private ruling of the court.

In case of failure to report on the measures taken, guilty officials may be subject to a fine of up to 10 minimum wages. The imposition of a fine does not relieve the relevant officials from the obligation to report on the measures taken on the basis of a private decision (Article 226 of the Code of Civil Procedure of the Russian Federation).

If, when considering a civil case, the court finds signs of a crime in the actions of a party, other participants in the process, an official or another person, the court informs the prosecutor about this.

4. Validity of rulings of the court of first instance

The entry into force of the rulings of the court of first instance has some peculiarities. As a rule, court rulings enter into force upon the entry into force of a court decision. However, such rulings as a ruling on refusal to accept a statement of claim, a ruling on refusal to approve a settlement agreement, and others may be appealed within 10 days after their issuance. There are court rulings that come into force immediately, for example, the ruling and rulings of the court on newly discovered circumstances (part 2 of article 397 of the Code of Civil Procedure of the Russian Federation).

5. Legal force of the judgment

In the legal literature, as well as in the Code of Civil Procedure of the Russian Federation, there is no definition of what is the legal force of a court decision.

Under legal force legal scholars understand the “legal effect of a decision” [10], immutability, direct manifestation of the action of a rule of law [11], stability and mandatory action ensured by law, legal action, manifested in the fact that the presence or absence of rights and the facts underlying them is established finally, rights are subject to unquestioning implementation at the request of interested parties.

After the adoption of the Code of Civil Procedure of the Russian Federation by the Plenum of the Supreme Court of the Russian Federation, a resolution "On the Judgment" was adopted, which reveals the most important aspects of the meaning and content of the court decision as an act of justice and a procedural document resolving a civil case on the merits. The concept and essence of a court decision, the signs of its entry into force were also reflected in the Resolution of the Plenum of the Supreme Court of the Russian Federation dated October 10, 2003 No. 5 "On the application by courts of general jurisdiction of generally recognized principles and norms of international law and international treaties of the Russian Federation."

When a court decision is made, the question of its entry into force arises. This problem is rooted in the provisions of the Code of Civil Procedure of the RSFSR. Neither the Code of Civil Procedure of the RSFSR nor the Code of Civil Procedure of the Russian Federation clearly defines when a court decision comes into force. In the Code of Civil Procedure of the Russian Federation in Art. 321 and 338 states that the judgment of the court of first instance can be appealed to the appellate and cassation instances within 10 days after the judge of the court of general jurisdiction or the justice of the peace has issued the final judgment. The judge has the right to take advantage of the five-day period to issue a final judgment on the case. In this case, the judge must announce the operative part in the court session. And consequently, term for appeal or cassation appeal begins to be calculated from the moment the judge presents the judgment after a five-day period. Practice shows that many citizens who have applied for the protection of their rights and legitimate interests are not aware of these norms and cannot appeal a court decision in a court of second instance. This point must be taken into account. When applying to the court of second instance, an application is first submitted for the restoration of the missed period, and only then, on the basis of the existing ruling, an appeal or cassation complaint is filed.

A court decision that has entered into force has a number of properties, such as:

1) obligation;

2) feasibility;

3) prejudice;

4) exclusivity;

5) irrefutability.

A judgment that has entered into force has binding property, which means that the court decision must be necessarily and promptly executed. The binding nature of a court decision is also characterized by the fact that a court decision that has entered into legal force is binding on all officials and citizens of the Russian Federation. The binding nature of a court decision does not deprive a citizen of the right to apply to the court for the protection of his right and legitimate interest, the dispute about which was not resolved in this court decision.

Diligence - one of the important properties of judicial decisions. It means that a court decision that has entered into legal force must necessarily be executed, if not voluntarily, then by force.

Prejudice can be considered as a prejudice, i.e. those circumstances that were established by a court decision that has entered into legal force cannot be disputed by the parties and third parties in another process. For example, when collecting alimony, if the child was born out of wedlock, it is necessary to establish the fact of paternity. After establishing the fact of paternity, the parties in the recovery of alimony do not need to prove the fact of paternity in a new trial.

The most complete and correct is definition of exclusivity, given by N.B. Zeider: “Exclusivity should be called such a property of a decision that has entered into legal force, as a result of which the court decision excludes the possibility of a second consideration of the same dispute between the parties or the same statement, complaint or indisputable demand of the interested party” [12].

Irrefutability represents the impossibility of cassation appeal, cassation verification of the judgment. If the court decision did not have this property, it would be appealed an unlimited number of times. And according to the Code of Civil Procedure of the Russian Federation, a court decision that has not entered into legal force can be appealed by way of cassation or appeal. A court decision that has entered into legal force can be appealed once to the courts of the supervisory instance.

6. Limits of the legal force of a judgment

In the legal literature, objective and subjective limits of the legal force of a judgment are distinguished. The objective limits of the legal force of a judgment apply only to the subject of the trial, that is, they are limited to those legal relations that arose during the consideration and resolution of the case on the merits. In this case, the objective limits of the judgment act as a property of the act of justice. The subjective limits of the court decision apply to persons not participating in the case, but whose rights and legitimate interests have been violated. It seems necessary in the Code of Civil Procedure of the Russian Federation to provide for the procedure for filing a complaint with the cassation or appeal instance by these persons, and not just by the supervisory authority.

Author: Gushchina K.O.

<< Back: Trial (Preparation of the case for trial. Trial. Suspension of proceedings in the case. Termination of proceedings in the case. Protocol of the court session. Proceedings in absentia)

>> Forward: Proceedings in cases arising from public legal relations (Cases arising from public legal relations. Proceedings in cases of invalidation of normative legal acts in whole or in part. Proceedings in cases of challenging decisions, actions (inaction) of state authorities, local governments, officials, state and municipal employees. Proceedings on cases of protection of voting rights and the right to participate in a referendum of citizens of the Russian Federation)

We recommend interesting articles Section Lecture notes, cheat sheets:

▪ Microbiology. Lecture notes

▪ Psychology of work. Crib

▪ Enterprise economy. Lecture notes

See other articles Section Lecture notes, cheat sheets.

Read and write useful comments on this article.

<< Back

Latest news of science and technology, new electronics:

The existence of an entropy rule for quantum entanglement has been proven 09.05.2024

Quantum mechanics continues to amaze us with its mysterious phenomena and unexpected discoveries. Recently, Bartosz Regula from the RIKEN Center for Quantum Computing and Ludovico Lamy from the University of Amsterdam presented a new discovery that concerns quantum entanglement and its relation to entropy. Quantum entanglement plays an important role in modern quantum information science and technology. However, the complexity of its structure makes understanding and managing it challenging. Regulus and Lamy's discovery shows that quantum entanglement follows an entropy rule similar to that for classical systems. This discovery opens new perspectives in the field of quantum information science and technology, deepening our understanding of quantum entanglement and its connection to thermodynamics. The results of the study indicate the possibility of reversibility of entanglement transformations, which could greatly simplify their use in various quantum technologies. Opening a new rule ... >>

Mini air conditioner Sony Reon Pocket 5 09.05.2024

Summer is a time for relaxation and travel, but often the heat can turn this time into an unbearable torment. Meet a new product from Sony - the Reon Pocket 5 mini-air conditioner, which promises to make summer more comfortable for its users. Sony has introduced a unique device - the Reon Pocket 5 mini-conditioner, which provides body cooling on hot days. With it, users can enjoy coolness anytime, anywhere by simply wearing it around their neck. This mini air conditioner is equipped with automatic adjustment of operating modes, as well as temperature and humidity sensors. Thanks to innovative technologies, Reon Pocket 5 adjusts its operation depending on the user's activity and environmental conditions. Users can easily adjust the temperature using a dedicated mobile app connected via Bluetooth. Additionally, specially designed T-shirts and shorts are available for convenience, to which a mini air conditioner can be attached. The device can oh ... >>

Energy from space for Starship 08.05.2024

Producing solar energy in space is becoming more feasible with the advent of new technologies and the development of space programs. The head of the startup Virtus Solis shared his vision of using SpaceX's Starship to create orbital power plants capable of powering the Earth. Startup Virtus Solis has unveiled an ambitious project to create orbital power plants using SpaceX's Starship. This idea could significantly change the field of solar energy production, making it more accessible and cheaper. The core of the startup's plan is to reduce the cost of launching satellites into space using Starship. This technological breakthrough is expected to make solar energy production in space more competitive with traditional energy sources. Virtual Solis plans to build large photovoltaic panels in orbit, using Starship to deliver the necessary equipment. However, one of the key challenges ... >>

Random news from the Archive Cooling heart attack 28.11.2010 A decrease in body temperature protects the heart in case of a heart attack. One of the methods of dealing with a heart attack is the so-called emergency coronary balloon angioplasty: a catheter is inserted into a vessel on the thigh or on the arm, brought to the site of the blockage of the coronary artery, where the balloon expanding it is inflated. After that, the blood can flow freely again. Such an operation takes time, but it just doesn’t exist, since the heart muscle left without food is rapidly dying. You can slow down the process by lowering your body temperature. But how to do that? Scientists from Lund University, led by Professor David Erlinge, have developed the following technique. As soon as possible after a heart attack, a person is injected with saline cooled to 35°C. Rapidly spreading through the blood vessels, it enters the heart and cools it. After cooling, the operation is performed with a cold catheter. As a result, the survival of patients with a heart attack increased by a third. Both cooling and angioplasty are performed without anesthesia, and the person does not feel much discomfort. Delighted by the success of the Swedish cardiologists are going to start extensive testing of their method.

Other interesting news:

▪ Artificial eyelashes controlled by magnet and light

▪ Photon from a nanotube

▪ Effect of stress on brain size

▪ 80 terabyte hard drives

▪ Inherited stress

News feed of science and technology, new electronics

Interesting materials of the Free Technical Library:

▪ Modeling section of the site. Selection of articles

▪ article by Louis Pasteur. Famous aphorisms

▪ article At what competitions was the song from the film Borat played to the winner from Kazakhstan instead of the anthem? Detailed answer

▪ article The functional composition of Saico TVs. Directory

▪ GPA article for IF 5,5 MHz. Encyclopedia of radio electronics and electrical engineering

▪ article How to prepare copper sulfide tiles for dry rectifiers. Encyclopedia of radio electronics and electrical engineering

Leave your comment on this article:

All languages ​​of this page

Arabic	Hebrew	Polish
Bengali	Hindi	Portuguese
Chinese	Italian	Spanish
English	Japanese	Turkish
French	Korean	Ukrainian
German	Malay	Vietnamese

Home page | Library | Articles | Website map | Site Reviews

www.diagram.com.ua
2000-2024