Lecture No. 12. Special production

1. General characteristics of cases of special proceedings

Protection of violated rights is mainly carried out in lawsuit proceedings. However, there is often a need to protect subjective rights and legally protected interests in the absence of a dispute.

Purpose of special production is the elimination of possible uncertainties that cannot be established out of court. In the procedure for special proceedings, the interested person has the right to establish a legal fact, which will later serve as the basis for the exercise of subjective rights.

special production should be understood as the procedure for creating conditions for the person concerned in order to exercise his personal rights and legally protected interests by confirming the presence or absence of certain circumstances, regulated by the norms of the Code of Civil Procedure of the Russian Federation.

In the order of special proceedings, the court considers cases (Article 262 of the Code of Civil Procedure of the Russian Federation):

1) on the establishment of facts of legal significance;

2) on the adoption (adoption) of a child;

3) on recognizing a citizen as missing or on declaring a citizen dead;

4) on limiting the legal capacity of a citizen, on recognizing a citizen as incapable, on limiting or depriving a minor aged 14 to 18 of the right to independently manage his income;

5) on declaring a minor fully capable (emancipation);

6) on recognizing a movable thing as ownerless and recognizing the right of municipal ownership to an ownerless immovable thing;

7) on the restoration of rights under lost bearer securities or order securities (calling proceedings);

8) on compulsory hospitalization of a citizen in a psychiatric hospital and compulsory psychiatric examination;

9) on making corrections or changes in civil status records;

10) on applications for completed notarial acts or refusal to perform them;

11) on applications for the restoration of lost court proceedings.

The list of cases submitted by the Code of Civil Procedure of the Russian Federation in Art. 262, not exhaustive, and this seems correct, since it is impossible to predict all situations in which a judicial decision is necessary to establish a particular fact, action, or event. Cases of special proceedings are considered and resolved according to the rules of claim proceedings. The basis for initiating special proceedings is an application, which is subject to the requirements provided for in Art. 131, 132 Code of Civil Procedure of the Russian Federation. In addition to the requirements specified in Art. 131, 132 of the Code of Civil Procedure of the Russian Federation, it is also necessary to indicate the legal purpose of obtaining a court decision, as well as the impossibility of obtaining the establishment of a particular legal fact out of court.

Special production has its own nuances. For example, there are no parties, third parties in special proceedings. The person who applied to the court to establish this or that fact is called the applicant, who, according to Art. 34 Code of Civil Procedure of the Russian Federation is a person involved in the case, and in accordance with Article. 35 Code of Civil Procedure of the Russian Federation exercises its procedural rights and performs procedural duties. Both natural and legal persons can act as an applicant. An individual must be legally capable. If there are any restrictions on legal capacity (a person is limited in legal capacity, recognized by the court as incapacitated), then legal representatives, trustees, guardians act as the applicant. Interested persons whose rights or legitimate interests may be affected by the issuance of a court decision may be involved in the case. So, for example, in special proceedings, civil registry offices (registry office), a public notary, a notary engaged in private practice, etc. can be involved as interested parties. In such cases as the adoption (adoption) of a child, recognition of a citizen participation of the prosecutor in the civil process is obligatory.

If a dispute about the right arises in the process of special proceedings, the court shall issue a ruling on leaving the application without consideration and explain to the applicant the right to apply to the court in the course of action proceedings.

2. Establishment of facts of legal significance

According to Art. 264 Code of Civil Procedure of the Russian Federation, the court establishes the facts on which the emergence, change, termination of personal or property rights of citizens and organizations depend.

The court considers cases on the establishment of:

1) family relations;

2) the fact of being dependent;

3) the fact of registration of birth, adoption (adoption), marriage, divorce, death;

4) the fact of recognition of paternity;

5) the fact of ownership of title documents (with the exception of military documents, a passport and certificates issued by civil registry offices) to a person whose name, patronymic or surname indicated in the document do not match the name, patronymic or surname of this person indicated in the passport or birth certificate;

6) the fact of possession and use of immovable property;

7) the fact of an accident;

8) the fact of death at a certain time and under certain circumstances in case of refusal of the civil registry authorities to register the death;

9) the fact of acceptance of the inheritance and the place of opening of the inheritance;

10) other facts of legal significance.

The court establishes legal facts only on the condition that it is impossible for the applicant to otherwise obtain the necessary documents proving the facts, as well as if it is impossible to restore the lost documents. According to this provision, when the applicant applies to the court to establish a fact of legal significance, he must provide evidence that it is impossible to restore documents in any other way (for example, submit a refusal of an official or public authority). In the application, the applicant must also indicate for what purposes he needs to establish a fact of legal significance. The court decision issued at the request of the applicant is a document confirming a fact of legal significance, and in relation to a fact subject to registration, it serves as the basis for such registration, but does not replace the documents issued by the registration authorities (Article 268 of the Code of Civil Procedure of the Russian Federation).

The application is submitted by the applicant at the place of residence, except for cases when the application is submitted at the location of the property.

3. Adoption (adoption) of a child

Given the existing social reality in the country, the adoption of a child is an urgent issue. A citizen wishing to adopt or adopt a child must apply to the district court at the place of residence or location of the adopted child. If a citizen who wishes to adopt or adopt a child is not a citizen of the Russian Federation or permanently resides outside its borders (as well as stateless persons have the right to adopt or adopt a child), then he must file an application with the Supreme Court of the Republic, a regional, regional court or a city court federal significance at the place of residence or at the location of the adopted child.

The application for adoption must contain (Article 270 of the Code of Civil Procedure of the Russian Federation):

1) surname, name, patronymic of the adoptive parents (adoptive parent), their place of residence;

2) last name, first name, patronymic and date of birth of the adopted child, his place of residence or location, information about the parents of the adopted child, whether he has brothers and sisters;

3) circumstances substantiating the request of the adoptive parents (adoptive parent) for the adoption of a child, and documents confirming these circumstances;

4) a request to change the last name, first name, patronymic, place of birth of the adopted child, as well as the date of his birth (when adopting a child under the age of 1 year), about the entry of the adoptive parents (adoptive parent) by the parents (parent) in the entry of the birth certificate.

The application for adoption must the following documents are attached (Art. 271 Code of Civil Procedure of the Russian Federation):

1) a copy of the birth certificate of the adopter - in case of adoption of a child by a person who is not married;

2) a copy of the marriage certificate of the adoptive parents (adoptive parent) - in case of adoption of a child by persons (person) who are married;

3) when a child is adopted by one of the spouses - the consent of the other spouse or a document confirming that the spouses have terminated family relations and have not lived together for more than a year. If it is impossible to attach a relevant document to the application, the application must contain evidence confirming these facts;

4) medical report on the state of health of the adoptive parents (adoptive parent);

5) a certificate from the place of work on the position held and salary or a copy of the income declaration or other document on income;

6) a document confirming the right to use the residential premises or the ownership of the residential premises;

7) a document on the registration of a citizen as a candidate for adoptive parents;

8) the conclusion of the competent authority of the state of which the adoptive parents are citizens (when adopting a child by stateless persons - the state in which these persons have permanent residence), on their living conditions and on the possibility of being adoptive parents;

9) permission from the competent authority of the respective state for the entry of the adopted child into this state and his permanent residence in the territory of this state;

10) if it is required in accordance with the rules of law of a foreign state and (or) an international treaty of the Russian Federation, - the consent of the child himself to adoption.

After the court accepts the application for proceedings and makes a decision to initiate proceedings in the case, the court proceeds to the second stage of the civil process - preparing the case for trial. In this type of production, this stage is of great importance. It is at this stage that the court attracts and obliges the guardianship and guardianship authorities to submit to the court an opinion on the compliance of the adoption with the interests of the child.

When submitting an opinion to the court, the guardianship and guardianship authorities must also submit a number of other documents (part 2 of article 272 of the Code of Civil Procedure of the Russian Federation):

1) an act of examination of the living conditions of the adoptive parents (adoptive parent), drawn up by the body of guardianship and guardianship at the place of residence or location of the adopted child or at the place of residence of the adoptive parents (adoptive parent);

2) birth certificate of the adopted child;

3) a medical report on the state of health, on the physical and mental development of the adopted child;

4) the consent of the adopted child, who has reached the age of 10 years, to adoption, as well as to possible changes in his first name, patronymic, last name and the record of the adoptive parents (adoptive parent) as his parents (except in cases where such consent is not required in accordance with federal law );

5) the consent of the parents of the child to his adoption when adopting a child of parents under the age of 16, also the consent of their legal representatives, and in the absence of legal representatives - the consent of the guardianship and guardianship authority, except for the cases provided for in Art. 130 of the Family Code of the Russian Federation dated December 29, 1995 No. 223-FZ (IC RF).

In turn, Art. 130 RF IC establishes that consent of the child's parents is not required for adoption in casesif they are unknown or recognized by the court as missing, recognized by the court as incompetent, deprived by the court of parental rights, for reasons recognized by the court as disrespectful, do not live with the child for more than 6 months and evade his upbringing and maintenance;

6) consent to the adoption of a child by his guardian (custodian), adoptive parents or the head of the institution in which the child is left without parental care;

7) when a child is adopted by citizens of the Russian Federation permanently residing outside the territory of the Russian Federation, foreign citizens or stateless persons who are not relatives of the child - a document confirming the availability of information about the adopted child in the state data bank on children left without parental care, as well as documents confirming the impossibility of transferring the child for upbringing to a family of citizens of the Russian Federation or for adoption by relatives of the child, regardless of the citizenship and place of residence of these relatives.

Cases on the adoption or adoption of a child are held in a closed court session with the obligatory participation of representatives of the guardianship and guardianship body, the prosecutor who is invited to give an opinion, as well as the child himself aged 10 to 14 years. After considering and resolving the case on the merits, the court satisfies or refuses the request for adoption or adoption of the child. When satisfying the request for adoption or adoption of a child, the court issues a court decision, in which it describes in detail who the parents of the child are and from what moment, as well as all the data necessary for state registration with the civil registry offices. A copy of the court decision on the adoption or adoption of a child within 3 days is sent to the civil registry offices for the appropriate state registration. Consideration and resolution of cases on the cancellation of the adoption or adoption of a child are carried out in the manner and according to the rules of action proceedings (Article 275 of the Code of Civil Procedure of the Russian Federation).

I would like to draw attention to the lack of control by the state of the future fate of children adopted in accordance with the requirements of the Code of Civil Procedure of the Russian Federation. The state does not control the process of raising adopted children and has no idea about their further development. In practice, this is exactly the situation. Many citizens adopt children to improve their financial situation. This issue somehow needs to be worked out at the state level and restrictions on adoption should be established. Institutions where children are kept until adoption are poorly provided by the state, and accordingly they are forced to give up children, turning a blind eye to some nuances (for example, to the not quite adequate behavior of the adopter, etc.).

4. Recognizing a citizen as missing or declaring a citizen dead

In the context of the development of a modern state, the recognition of a citizen as missing or the declaration of a citizen as dead is an urgent problem. Due to the increase in crime in the country (in particular, the commission of crimes that infringe on human life and health), a huge number of citizens disappear every year. An important factor contributing to the death of the population are local military operations (in Chechnya), terrorist acts, acts of nature, as well as the disappearance of people among the migration processes.

The basis for initiating special proceedings is an application submitted at the place of residence or location of the person concerned. In an application for recognizing a citizen as missing or for declaring a citizen dead, it must be indicated for what purpose it is necessary for the applicant to recognize the citizen as missing or declare him dead, and the circumstances confirming the citizen’s unknown absence, or circumstances that threatened the missing person with death or giving reason to assume his death from a certain accident. With regard to military personnel or other citizens who have gone missing in connection with hostilities, the statement indicates the day the hostilities ended (Article 277 of the Code of Civil Procedure of the Russian Federation). The purpose for which a judgment is needed must be of a legal nature.

Goals include: termination of a power of attorney, opening of an inheritance, dissolution or termination of a marriage, the right to receive a survivor's pension, the possibility of disposing of joint property, etc.

At the stage of preparing the case for trial, the court finds out who can provide information about the missing citizen, and also requests the relevant organizations at the last known place of residence, place of work of the absent citizen, internal affairs bodies, military units about the information available about him. After accepting an application for recognizing a citizen as missing or for declaring a citizen dead, the judge may propose to the body of guardianship and guardianship to appoint a trustee of the property of such a citizen (Article 278 of the Code of Civil Procedure of the Russian Federation). Thus, in cases of recognizing a citizen as missing or declaring a citizen dead, the court has an unlimited range of powers to collect evidence. Cases on recognizing a citizen as missing or declaring a citizen dead are considered with the obligatory participation of a prosecutor.

The decision rendered by the court must meet the general requirements.

In the court decision, the court must indicate from what moment the citizen is recognized as missing or declared dead. In the operative part of its decision, the court indicates not only individualized characteristics (full name, last place of residence, etc.), but also indicates the date of death of the citizen. When registering the death of a citizen with the civil registry office, the date is considered the day the court decision entered into legal force.

In the event of the appearance or discovery of the place of residence of a citizen recognized as missing or declared dead, the court by a new decision cancels its earlier decision. The new court decision is, accordingly, the basis for the abolition of the management of the property of a citizen and for the annulment of the record of death in the book of state registration of acts of civil status (Article 280 of the Code of Civil Procedure of the Russian Federation).

Author: Gushchina K.O.

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