Lecture No. 4. Persons involved in the case

1. The concept of persons participating in the case

The composition of the persons participating in the case includes persons who have applied to the court for the protection of their rights and legitimate interests. In accordance with Art. 34 Code of Civil Procedure of the Russian Federation persons involved in the case, the parties (plaintiff and defendant), third parties who declare independent claims, third parties who do not declare independent claims, applicants, interested persons, the prosecutor, persons who applied to the court for the protection of the rights, freedoms and legitimate interests of other persons or enter into the process are recognized for giving an opinion (public authorities, local authorities, organizations, citizens). In cases stipulated by law, public authorities, local authorities, organizations or citizens have the right to apply to the court with an application in defense of the rights, freedoms and legitimate interests of other persons at their request or in defense of the rights, freedoms and legitimate interests of an indefinite circle of persons.

An application in defense of the legitimate interests of an incapacitated or underage citizen in these cases may be filed regardless of the request of the person concerned or his legal representative. Persons who filed an application in defense of the legitimate interests of other persons enjoy all procedural rights and bear all the procedural obligations of the plaintiff, with the exception of the right to conclude a settlement agreement and the obligation to pay court costs. In case of refusal of bodies, organizations or citizens to support the demand declared by them in the interests of another person, consideration of the case on the merits continues. If the plaintiff refuses the claim, the court terminates the proceedings, unless this is contrary to the law or violates the rights and legitimate interests of other persons (Article 46 of the Code of Civil Procedure of the Russian Federation). Prior to the adoption of a decision by the court of first instance, state bodies, local self-government bodies enter into the case on their own initiative or on the initiative of the persons participating in the case, in order to give an opinion on the case in order to fulfill their duties and protect the rights, freedoms and legitimate interests of other persons or interests of the Russian Federation, subjects of the Russian Federation, municipalities. The court also, on its own initiative, may involve a state body or a local self-government body in the case in order to achieve the protection of the rights, freedoms and legitimate interests of other persons or the interests of the Russian Federation, constituent entities of the Russian Federation, municipalities (Article 46 of the Code of Civil Procedure of the Russian Federation).

By the plaintiff in civil procedural law, a person who has applied to the court for the protection of his violated or disputed rights, freedoms and legitimate interests is called. A person who is brought to court to answer a statement of claim brought by the plaintiff is called the defendant. With regard to special proceedings and proceedings in cases arising from public legal relations, the party whose rights are violated or challenged is called the applicant, the party that is involved in the answer is called stakeholder.

2. Rights and obligations of persons participating in the case

Article 35 of the Code of Civil Procedure of the Russian Federation defines the range of rights and obligations of persons participating in the case.

The persons involved in the case have the right:

1) get acquainted with the materials of the case;

2) make extracts from them;

3) make copies;

4) declare challenges;

5) present evidence and participate in their research;

6) to ask questions to other persons participating in the case, witnesses, experts and specialists;

7) file motions, including the request for evidence;

8) give explanations to the court in writing and orally;

9) present their arguments on all issues arising in the course of the trial;

10) object to petitions and arguments of other persons participating in the case;

11) appeal against court decisions and use other procedural rights granted by the legislation on civil proceedings.

Persons participating in the case must conscientiously use all procedural rights belonging to them.

Persons participating in the case bear procedural dutiesestablished by the Code of Civil Procedure of the Russian Federation and other federal laws. Failure to fulfill procedural obligations entails consequences that are provided for by the legislation on civil proceedings. For example, if a duly notified witness fails to appear again without a valid reason, the court has the right to impose a fine on the witness.

3. Conclusion of an amicable agreement

The parties in civil proceedings have a number of procedural rights, which are specified in Art. 35 Code of Civil Procedure of the Russian Federation. But not all rights can be disposed of, for example, by their representatives. However, there are those rights that occupy a special place and are of an administrative nature, and the further course of legal proceedings as a whole or part of it depends on the implementation of the rights.

These rights include:

1) the right of the plaintiff to change the claim;

2) the right of the plaintiff to withdraw the claim;

3) the right of the defendant to recognize the claim (the representative of the defendant does not have the right to recognize the claim without the consent of the defendant, unless this is expressly stated in the power of attorney);

4) the right to conclude a settlement agreement.

Settlement agreement is the activity of the parties aimed at the voluntary settlement of the disputed legal relationship that has arisen. As a rule, the settlement agreement contains certain bilateral concessions to resolve the disputed conflict. But this is not always the case. One of the parties (and in most cases the defendant) makes concessions and agrees with the demands of the party (the plaintiff) only so that the dispute is not resolved in court, or until a court decision is made. In the legal literature there are two types of settlement agreement: extrajudicial and judicial. An out-of-court settlement agreement differs from a judicial settlement agreement in the moment and place of its conclusion. A settlement agreement concluded outside the court session or before the start of the trial is called out-of-court settlement... In turn, judicial settlement agreement consists in the process of trial, after which the court issues a ruling on the approval of the settlement agreement and the termination of the proceedings. The court has the right to refuse to approve a settlement agreement if it is illegal or violates the rights of other persons (Article 39 of the Code of Civil Procedure of the Russian Federation). An amicable agreement may be expressed in writing either in a separate document, which is attached to the materials of the civil case, or orally, as indicated in the minutes of the court session.

4. Wrong defendant in civil proceedings

In his statement of claim, the plaintiff must indicate the defendant, that is, the person to whom he makes his substantive claims. In the process of civil proceedings, it may become clear that the plaintiff has filed claims against a person who is not a violator of rights, freedoms and legitimate interests. In this way, wrong defendant - a person to whom substantive claims are erroneously presented by the plaintiff. In such situations, it is possible to replace the improper defendant by issuing a court ruling. The court, when preparing the case or during its consideration in the court of first instance, may allow, at the request of the plaintiff, the replacement of an improper defendant with a proper one. However after replacing the wrong defendant with the proper one, the preparation and consideration of the case is carried out from the very beginning (Art. 41 Code of Civil Procedure of the Russian Federation). If the plaintiff does not agree to the replacement of the improper defendant by another person, the court considers the case on the basis of the claim. It is worth noting that the court will make a judgment not in favor of the plaintiff, more precisely, a refusal will be made on the claims filed due to an improper defendant.

In Art. 36 Code of Civil Procedure of the RSFSR provided for the replacement of the wrong party. The court, having established during the trial of the case that the claim was brought by a person other than the person who owns the right to claim, or not against the person who should be responsible for the claim, may, with the consent of the plaintiff, without terminating the case, allow the replacement of the original plaintiff or defendant by the proper plaintiff or defendant. If the plaintiff does not agree to be replaced by another person, then this person may enter into the case as a third person who makes independent claims on the subject of the dispute, of which the court notifies this person. If the plaintiff does not agree to the replacement of the defendant by another person, the court may involve this person as a second defendant. Thus, according to the norms of the Code of Civil Procedure of the RSFSR, in the course of civil proceedings it was possible to replace not only an improper defendant, but also an improper plaintiff. This provision was not enshrined in the Code of Civil Procedure of the Russian Federation for the following reason. Appeal to the court with a statement of claim is an inalienable right of the plaintiff. Everyone can apply for judicial protection if he believes that his rights, freedoms and legitimate interests have been violated. If the person who applied to the court did not mean that he did not have the right to bring a subjective claim, the court must explain this to him. In the future, all procedural costs will be assigned to the improper plaintiff.

5. Third parties declaring independent claims regarding the subject of the dispute

According to Art. 42 of the Code of Civil Procedure of the Russian Federation, third parties who make independent claims regarding the subject of the dispute may intervene in the case before the adoption of a court decision by the court of first instance. They enjoy all the rights and are obliged to fulfill all the procedural obligations of the plaintiff (it should be concluded that third parties who make independent claims cannot intervene in a case that is in a court of second instance, since only those persons involved). In relation to persons who make independent claims regarding the subject of the dispute, the judge shall issue determination on their recognition by third parties in the case at hand, or on refusal to recognize them as third partiesagainst which a private complaint may be filed. When a third party enters the case, declaring independent claims regarding the subject of the dispute, the consideration of the case begins anew. The legislator has not resolved the question of who is the defendant to a third party who makes independent claims regarding the subject of the dispute. The Supreme Court of the RSFSR adhered to the following point of view: bringing a claim by a third party, declaring independent claims regarding the subject of the claim, is possible both against one of the original parties, and against two parties at the same time. By its nature, a third person who makes independent claims regarding the subject of the dispute is none other than the plaintiff, and in accordance with this enjoys all the procedural rights and obligations of the plaintiff in civil proceedings. The claims of a third party in relation to the subject matter of the dispute should not have the same grounds as those of the original plaintiff. The interests of a third party, indicated in the claim regarding the subject of the dispute, must be mutually exclusive with the interests of the original plaintiff, otherwise the court will issue a ruling on refusing to recognize them as third parties making independent claims regarding the subject of the dispute. Third parties who do not declare an independent claim regarding the subject of the dispute cannot be attracted by the court to participate in the case.

6. Third parties who do not declare independent claims regarding the subject of the dispute

Third parties who do not file independent claims regarding the subject of the dispute may intervene on the side of the plaintiff or defendant until the court of first instance adopts a court decision on the case, if it may affect their rights or obligations in relation to one of the parties. Third parties who do not declare independent claims regarding the subject of the dispute may be involved in the case also at the request of the persons participating in the case, or at the initiative of the court. Third parties who do not file independent claims enjoy the procedural rights and bear the procedural obligations of the party by which they were involved. Third parties who do not declare an independent claim regarding the subject of the dispute do not enjoy the right to change the basis or subject of the claim, increase or decrease the amount of claims, refuse the claim, recognize the claim or conclude a settlement agreement, as well as file a counterclaim and demand enforcement of a court order. decisions (Art. 43 Code of Civil Procedure of the Russian Federation). A court ruling shall be issued on the entry into the case of third parties who do not declare independent claims regarding the subject of the dispute. As well as when third parties enter civil proceedings, declaring independent claims regarding the subject of the dispute, the case is considered from the very beginning. The procedural position of a third person who does not file independent claims does not fully coincide with the procedural position of the plaintiff, defendant, accomplices. The difference is that the parties are subjects of disputed legal relations. Each of the co-plaintiffs is bound by legal relationship with the defendant, each of the co-defendants is bound by legal relationship with the plaintiff.

Connection of accomplices in a legal relationship with the other party means that they have mutual subjective rights and legal obligations. A third party who does not make an independent claim regarding the subject of the dispute is located outside the main disputed material legal relationship and is not its subject. Precisely because a third party who does not make independent claims regarding the subject of the dispute is not the subject of the main disputed legal relationship, the legislator has not endowed him with a number of procedural rights belonging to the parties [5].

7. Complicity in civil proceedings

The norms of the Code of Civil Procedure of the Russian Federation, as well as the Code of Civil Procedure of the RSFSR, provide for the participation in the case of several plaintiffs and several defendants (Article 40 of the Code of Civil Procedure of the Russian Federation). According to Art. 35 Code of Civil Procedure of the RSFSR an action may be brought jointly by several plaintiffs against several defendants. Each of the plaintiffs or defendants in relation to the other party acts independently in the process. The legislator in the Code of Civil Procedure of the RSFSR does not indicate the grounds for allowing procedural complicity. The initiative to combine claims into one proceeding may come from both the parties and the court.

Procedural participation according to the Code of Civil Procedure of the Russian Federation is allowed in three cases:

1) if the subject of the dispute is the general rights or obligations of several plaintiffs or defendants;

2) if the rights and obligations of several plaintiffs or defendants have one basis;

3) if the subject of the dispute are homogeneous rights and obligations.

The accomplices may entrust the conduct of the case to one of the accomplices. If it is impossible to consider the case without the participation of the co-defendant or the co-defendant due to the nature of the disputed legal relationship, the court shall involve him or them in the case on its own initiative. After the involvement of the co-defendant or co-defendants, the preparation and consideration of the case are carried out from the very beginning. Both in the Code of Civil Procedure of the RSFSR and the Code of Civil Procedure of the Russian Federation, two forms of complicity are distinguished: necessary complicity (mandatory) and optional complicity.

Mandatory complicity is characterized involvement in the process of all persons interested in the case for a more correct decision. In this case, the court considers all the claims of the plaintiffs against the co-defendants.

Optional complicity arises at the discretion of the court or the parties. In cases of optional complicity, the court has the right to separate a separate claim into independent proceedings both on its own initiative and on the initiative of the parties.

8. Participation of the prosecutor in civil proceedings

As noted above, the prosecutor is an independent participant in civil proceedings. The participation of the prosecutor in civil proceedings is regulated by the provisions of the Constitution of the Russian Federation, Federal Law of January 17, 1992 No. 2202-1 “On the Prosecutor’s Office of the Russian Federation.” In order to ensure the rule of law, unity and strengthening of the rule of law, protection of the rights and freedoms of man and citizen, as well as the legally protected interests of society and the state, the prosecutor carries out (according to Article 1, Part 2 of the Federal Law "On the Prosecutor's Office of the Russian Federation"):

1) supervision over the implementation of laws, over the compliance with the laws of legal acts issued by state bodies, local governments (the subject of supervision is compliance with the norms of the Constitution of the Russian Federation, enforcement of laws in force on the territory of the Russian Federation);

2) supervision over the observance of human and civil rights and freedoms by state bodies, local governments, commercial and non-profit organizations;

3) supervision of the execution of laws by bailiffs, etc.

Influence in any form of federal government bodies, government bodies of the constituent entities of the Russian Federation, local governments, public associations, the media, their representatives, as well as officials on the prosecutor in order to influence the decision he makes or obstruct in any the form of his activity is unacceptable (Article 5, part 1 of the Federal Law "On the Prosecutor's Office of the Russian Federation").

Powers of the prosecutorparticipating in the judicial consideration of cases are determined by the procedural legislation of the Russian Federation, in particular the Code of Civil Procedure of the Russian Federation.

The prosecutor, in accordance with the procedural legislation of the Russian Federation, has the right to apply to the court with a statement or intervene in a case at any stage of the process, if this is required by the protection of the rights of citizens and the interests of society or the state protected by law.

In this way, The prosecutor may participate in civil proceedings in two cases:

1) apply to the court with an application in defense of the rights and freedoms and legitimate interests of other persons;

2) join the process to give an opinion on the case.

In Art. 45 Code of Civil Procedure of the Russian Federation provides for the participation of the prosecutor in civil proceedings.

The prosecutor has the right apply to the court to initiate civil proceedings in a case in defense of rights, freedoms and legitimate interests in relation to:

1) an indefinite circle of persons;

2) interests of the Russian Federation, subjects of the Russian Federation, municipalities;

3) a citizen, unless the citizen, due to health reasons, age, incapacity and other valid reasons, cannot apply to the court himself (cases of impossibility to participate in civil proceedings on the case are established by the court).

The prosecutor who filed the application enjoys all procedural rights and bears all the procedural obligations of the plaintiff, with the exception of the right to conclude a settlement agreement and the obligation to pay court costs. If the prosecutor refuses to file an application in defense of the legitimate interests of another person, the consideration of the case on the merits continues, unless this person or his legal representative declares that the claim is waived.

If the plaintiff refuses the claim, the court terminates the proceedings, unless it is contrary to law or violates the rights and legitimate interests of other persons. As for the prosecutor's entry into the process to give an opinion on the case, the Code of Civil Procedure of the Russian Federation defines categories of cases in which the prosecutor must give his opinion: in cases of eviction, reinstatement, compensation for harm caused to life and health, as well as in other cases provided for by Russian law, in order to exercise the powers vested in him. The failure of the prosecutor, who has been notified of the time and place of the hearing of the case, to appear shall not be an obstacle to the hearing of the case.

In turn, in the Code of Civil Procedure of the RSFSR, the position of the prosecutor was not limited: he could freely enter into any stage of civil proceedings if this was required by the protection of state or public interests or the rights and legally protected interests of citizens. The prosecutor did not bear any procedural obligations in relation to the plaintiff, the defendant. In general, the participation of the prosecutor in the civil process of the RSFSR was of a privileged nature: he was the first to speak in judicial debates, fought with the defendant, etc.

9. Succession in civil proceedings

There are cases when one of the parties to civil proceedings withdraws from the process (a citizen dies, a legal entity is subject to reorganization, assignment of claims, transfer of debt and other cases of change of persons in obligations arise). In order for civil proceedings not to be terminated and to be implemented the main task of the civil process - protection of violated or contested rights and legitimate interests, civil procedural law provides for the institution of procedural succession, that is, it is allowed to replace the withdrawn party with its successor.

Succession is possible at any stage of civil proceedings. All actions taken before the legal successor entered into the process are binding on him to the same extent that they would be binding on the person whom the legal successor replaced. When a legal successor enters into civil proceedings in a case, the court issues a ruling to replace the kicking party or to refuse to replace the legal successor. A private complaint may be filed against this ruling in the manner prescribed by civil procedural legislation. Procedural succession is impossible only in the case when the material claims and obligations of the retired plaintiff are based on rights and obligations that are inextricably linked with the personality of the retired claimant and cannot be transferred through succession (on establishing the fact

paternity, reinstatement at work, protection of honor and dignity, etc.). It is also worth noting that no matter at what stage of civil proceedings the successor enters, the case continues from the stage at which it was suspended with the need for succession. That's why successor is not entitled require a re-examination of a witness, examination of evidence, re-examination, etc. It seems necessary to also note that, entering into civil proceedings on a case, the successor is obliged provide evidence of his succession (certificate of the right of inheritance, documents of reorganization of a legal entity).

Author: Gushchina K.O.

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