Lecture No. 6. Evidence and proof in civil proceedings

1. The concept of proof in civil proceedings

Judicial evidence as an indirect form of judicial cognition, it is a clearly and in detail regulated by law procedural activity of the court and persons involved in the case to study factual circumstances through evidence for the purpose of legal and justified resolution of a legal conflict [7].

Allocate five stages of forensic evidence:

1) indication of interested persons for evidence. When filing a statement of claim, the plaintiff indicates in it the evidence on the basis of which he considers that his right has been violated or challenged. This does not mean that the plaintiff must actually provide evidence. But when issuing a ruling on accepting the statement of claim and initiating civil proceedings in the case, the court must make sure that the right, the legitimate interest of the plaintiff are violated. So, for example, in special proceedings, in order to establish facts of legal significance, the applicant must provide evidence that it is impossible to obtain them in another extrajudicial way;

2) presentation and disclosure of evidence. The parties must submit all available evidence in the case to the court for their examination. Evidence materials are provided by persons directly involved in the case. And, therefore, representatives can also represent the evidence base.

If the court considers that the evidence presented is insufficient to make a correct, lawful and reasoned decision, it may invite the parties to submit additional evidence. If additional evidence is not presented, the court will make a decision on the basis of those that are available in the case. But due to the insufficiency of proven facts, the court may decide to dismiss the claims or satisfy the claims not in full. In the process of presenting evidence, the court determines which circumstances are relevant to the case, which party should prove them, submit the circumstances for discussion, even if the parties did not refer to any of them. It seems necessary to note that there are grounds for exemption from proof (Art. 61 Code of Civil Procedure of the Russian Federation).

Circumstances recognized by the court as public do not need to be proven. The circumstances established by a court decision that has entered into legal force in a previously considered case are binding on the court. These circumstances are not proven again and are not subject to dispute when considering another case involving the same persons. When considering a civil case, the circumstances established by the decision of the arbitration court that has entered into legal force must not be proved and cannot be disputed by persons if they participated in the case that was resolved by the arbitration court. A court verdict in a criminal case that has entered into legal force is binding on the court considering the case on the civil law consequences of the actions of the person in respect of whom the court verdict was passed, on the issues of whether these actions took place and whether they were committed by this person;

3) collecting and demanding evidence. According to the procedural law, evidence is presented by the parties interested in the outcome of the case. The court cannot interfere with the presentation of evidence by the parties. However, if a party has filed a petition about the impossibility or difficulty of obtaining any evidence that is directly related to the civil case, the court has the right to help the parties in obtaining evidence.

The court sends a request to the appropriate body or citizen to obtain evidence. Officials or citizens who are not able to present the required evidence at all or within the period established by the court must notify the court of this within 5 days from the date of receipt of the request, indicating the reasons. In case of failure to notify the court, as well as in case of failure to comply with the court's requirement to provide evidence for reasons recognized by the court as unjustified, guilty officials or citizens who are not persons participating in the case are fined - on officials in the amount of up to 10 minimum wages, for citizens - up to 5 minimum wages;

4) fixation and study of available evidence. This is the next stage of judicial evidence, in which the evidence presented by the parties is examined. All evidence presented is recorded in the minutes of the court session. During the study of evidence, information is extracted that is necessary to confirm or refute the circumstances of the case. In civil proceedings, allocate a number of ways to research evidence - obtaining explanations from the parties and third parties, interrogation of witnesses and experts, familiarization and disclosure of written evidence, examination of physical evidence, playback of audio and video recordings.

It should be noted that if it is impossible or difficult to deliver evidence to the court, the court may examine and examine written or material evidence at the place of their storage or their location. Examination and examination of evidence are carried out by the court with notification of the persons participating in the case. However, their failure to appear does not prevent the examination and examination of evidence. If necessary, experts, specialists, witnesses may be called to participate in the examination and examination of evidence. When examining and examining evidence at their location, a protocol is drawn up (Article 58 of the Code of Civil Procedure of the Russian Federation);

5) assessment of evidence. According to Art. 67 Code of Civil Procedure of the Russian Federation, the court evaluates the evidence according to its inner conviction, based on a comprehensive, complete, objective and direct study of the evidence in the case. No evidence has a predetermined force for the court. The court assesses the relevance, admissibility, reliability of each evidence separately, as well as the sufficiency and interconnection of evidence in their totality. The court must reflect the results of the assessment of evidence in the decision. When evaluating documents or other written evidence, the court is obliged, taking into account other evidence, to make sure that such documents or other written evidence come from an authority authorized to present this type of evidence, are signed by a person who has the right to affix the document with a signature, contain all other essential details of this type evidence.

When evaluating a copy of a document or other written evidence, the court checks whether the content of the copy of the document did not change in comparison with its original during copying, what technique was used for copying, whether copying guarantees the identity of the copy of the document and its original, how the copy of the document was stored.

The court cannot consider proven circumstances that are confirmed only by a copy of a document or other written evidence, if the original document is lost and not handed over to the court, the copies of this document presented by each of the disputing parties are not identical with each other and it is impossible to establish the true content of the original document with the help of other evidence.

2. The concept of evidence in civil proceedings

Evidence in the case information about the facts obtained in the manner prescribed by law, on the basis of which the court establishes the presence or absence of circumstances substantiating the claims and objections of the parties, as well as other circumstances that are important for the correct consideration and resolution of the case.

This information can be obtained from the explanations of the parties and third parties, the testimony of witnesses, written and material evidence, audio and video recordings, expert opinions. Do not forget that evidence obtained in violation of the law has no legal force and cannot be used as the basis for a court decision (Article 55 of the Code of Civil Procedure of the Russian Federation). It should be noted that audio and video recordings are a novelty of the Code of Civil Procedure of the Russian Federation.

In Art. 49 of the Code of Civil Procedure of the RSFSR establishes an exhaustive list of means of proof: explanations of the parties and third parties, testimony of witnesses, written evidence, material evidence and expert opinion. The civil procedural legislation does not provide for such a means of proof as the testimony of a witness. In the criminal procedural legislation, this novel was introduced in 2003. It is assumed that the conclusion and testimony of a specialist can also be a means of proof.

In practice, questions arise that do not require an expert opinion. It seems more reasonable to invite a specialist to provide clarifications on issues of interest. Of course, the legal status of a specialist is different from the legal status of an expert. The rights, duties and powers of an expert are enshrined in the Federal Law "On State Forensic Expert Activities in the Russian Federation". However, a specialist is also a person with professional knowledge that can affect the outcome of a case.

As mentioned above, the court, when assessing evidence, determines relevance, admissibility, reliability and sufficiency of evidence.

Relevant evidence in civil proceedings is evidence that is somehow related to the consideration and resolution of the case on the merits. Therefore, when confirming the facts that are important for making the right decision, the parties must provide evidence that is related to the claims and facts that require confirmation or refutation.

Admissibility refers to the term "restrictions" on the use of evidence presented by the parties. Some kind of restrictions are not established in the civil procedural legislation. Restrictions are established in the substantive law. For example, non-compliance with a simple written form of a transaction deprives the parties of the right, in the event of a dispute, to refer to evidence of the transaction to confirm the transaction, but deprives the right to provide written and other evidence (Article 162 of the Civil Code of the Russian Federation). Evaluation of evidence by the court is accompanied by verification of the reliability of the evidence presented by the parties. Civil procedural legislation establishes that the court cannot accept copies of documents as written evidence, only if they are certified with the originals.

When determining the reliability of evidence, the sources of evidence are also checked, since evidence obtained in violation of procedural law cannot be the basis of a court decision in a civil case. The last sign of proof is sufficiency.

When considering a case, the court determines whether the amount of evidence presented is sufficient to make a correct, lawful and reasoned judgment. If the evidence presented by the party is insufficient, the court in the process of action proceedings may issue a court decision to refuse to satisfy the claims.

In proceedings on cases of public legal relations, when the applicant contests a normative act, the interested person is obliged to provide the necessary amount of evidence, including the fact that this normative act does not contradict the provisions of the Constitution of the Russian Federation and does not violate the rights, freedoms and legitimate interests of a citizen.

Otherwise, due to the insufficiency of the evidence presented, the court will issue a judgment on the contradiction of the normative act of the Constitution of the Russian Federation and recognize it as invalid.

The subject of proof in civil proceedings are circumstances that are important for the correct resolution and consideration of a civil case, substantiating the requirements and objections of the parties.

In civil proceedings, it is customary to qualify evidence.

Evidence can be:

1) direct and indirect. Direct evidence is directly related to substantive claims. Direct evidence must indicate the existence of the above fact or the commission of the specified action. Indirect evidence does not directly relate to the facts of a civil case, but together they provide a clear picture of what is happening or confirm, to one degree or another, the existence of a fact.

Anecdotal evidence will be taken into account in the aggregate, unless they contradict each other. A decision made on the basis of a set of circumstantial facts may be overturned on grounds of unreasonableness;

2) initial and derivative. Initial evidence (otherwise referred to as "primary evidence") is, for example, original documents presented as evidence in a case. Derivative evidence will be copies of original documents certified in court by a court or notarized;

3) personal and subject evidence. Personal evidence includes the testimony of witnesses, explanations of the parties and third parties, i.e., evidence that is inextricably linked with a person. Substantive evidence will be material and written evidence.

The legal literature also highlights necessary evidencewithout which the court cannot make a judgment. In order to make a correct decision, the judiciary must receive this evidence in hand. For example, if a dispute arises about the invalidity of the contract for the sale of an apartment, the court needs such evidence as documents confirming the conclusion of the transaction, keys to the apartment, etc.

Persons participating in the case, having reason to fear that the presentation of the evidence necessary for them will subsequently be impossible or difficult, may ask the court to secure this evidence (Article 64 of the Code of Civil Procedure of the Russian Federation).

In order to provide evidence, a party or a third person shall submit an application to the court in which the case is being considered or in the area of ​​activity of which procedural actions must be carried out to secure evidence.

The application must indicate the content of the case under consideration, information about the parties and their place of residence or their location, the evidence that needs to be provided, the circumstances to confirm which this evidence is needed, the reasons that prompted the applicant to apply for the provision of evidence (Article 65 of the Code of Civil Procedure RF).

Do not forget that for the falsification of evidence, criminal law provides for liability. According to Art. 303 of the Criminal Code of the Russian Federation, falsification of evidence in a civil case by a person participating in the case, or his representative, is punishable up to arrest, not exceeding 4 months. For falsification, a fine in the amount of 100 to 000 rubles may also be imposed. or correctional labor for a period of 300 to 000 years.

3. Explanations of the parties and third parties

The most active participants in civil proceedings in a case are the plaintiff, the defendant and third parties who declare and do not declare independent claims regarding the subject of the dispute. Parties, third parties may give explanations both orally and in writing.

Orally, the parties, third parties give their explanations during civil proceedings in the process of proving the requirements presented in the statement of claim, statement, complaint. Written explanations of the parties and third parties, as a rule, are contained in the statement of claim, statement.

Explanations of the parties and third parties about the circumstances known to them, which are important for the correct consideration of the case, are subject to verification and evaluation along with other evidence. If the party obliged to prove its claims or objections retains the evidence in its possession and does not present them to the court, the court has the right to substantiate its conclusions with explanations from the other party.

Recognition by a party of the circumstances on which the other party bases its claims or objections relieves the latter from the need to further prove these circumstances. The confession is recorded in the minutes of the court session. The confession, set out in writing, is attached to the case file.

There are cases when the court has reason to believe that the confession was made in order to conceal the real circumstances of the case or under the influence of deceit, violence, threat, conscientious error, then the court does not accept the confession, about which it issues a ruling. In this case, these circumstances are subject to proof on a general basis (Article 68 of the Code of Civil Procedure of the Russian Federation).

4. Testimony

In Art. 69 Code of Civil Procedure of the Russian Federation defines who is witness: this is a person who may know any information about the circumstances relevant to the consideration and resolution of the case. It must be borne in mind that the information provided by the witness is not evidence if he cannot indicate the source of his knowledge.

The person applying for the summons of a witness is obliged to indicate what circumstances that are important for the consideration and resolution of the case, the witness can confirm, and to inform the court of his name, patronymic, surname and place of residence.

Civil procedural legislation establishes categories of persons who cannot act as a witness:

1) representatives in a civil case or defense counsel in a criminal case, a case of administrative offenses, if the circumstances became known to them in connection with the performance of the duties of a representative or defense counsel;

2) judges, jurors, people's assessors or arbitration assessors, if we are talking about issues that arose in the deliberation room in connection with the discussion of the circumstances of the case when the court decision or sentence was passed;

3) clergymen of religious organizations that have passed state registration, if they became aware of the circumstances of the case from confession.

Civil procedural law also indicates cases when Witness has the right to refuse to testify:

1) a citizen against himself;

2) spouse against spouse, children, including adopted children, against parents, adoptive parents, parents, adoptive parents against children, including adopted children;

3) brothers, sisters against each other, grandfather, grandmother against grandchildren and grandchildren against grandfather and grandmother;

4) deputies of legal bodies, in relation to information that became known to them in connection with the execution of deputy powers;

5) The Commissioner for Human Rights in the Russian Federation, in relation to information that became known to him in connection with the performance of his duties.

In Art. 61 of the Code of Civil Procedure of the RSFSR, the circle of persons who could not be interrogated was significantly limited:

1) representatives in a civil case or defense counsel in a criminal case (about the circumstances that became known to them in connection with the performance of the duties of a representative or defense counsel);

2) persons who, due to their physical or mental disabilities, are not able to correctly perceive the facts or give correct testimony about them.

In order to guarantee the achievement of a correct, lawful and reasoned decision, the civil procedural legislation of 1964 did not provide for an exemption from giving testimony.

For the first time, witness immunity was enshrined in Art. 51 of the Constitution of the Russian Federation of 1993. According to Art. 15 of the Constitution of the Russian Federation, no one is obliged to testify against himself, his spouse and close relatives, the circle of which is determined by federal law. The Constitution of the Russian Federation provides for other cases of exemption from the obligation to testify, which may be provided for by federal legislation.

Article 70 of the Code of Civil Procedure of the Russian Federation provides for the rights and obligations of a witness.

The person called as a witness must appear in court at the appointed time and give truthful testimony. A witness may be interrogated by the court at the place of his residence, if he is unable to appear when summoned by the court due to illness, old age, disability or other valid reasons.

Unlike the parties and third parties, a witness bears criminal responsibility for giving false testimony and for refusing to testify for reasons not provided for by procedural legislation.

According to Art. 307 of the Criminal Code of the Russian Federation, giving knowingly false testimony of a witness in court entails a fine of up to 80 rubles, or compulsory work, or corrective labor, as well as arrest for up to 000 months.

A note is attached to this article, which provides that a witness who voluntarily confesses to the falsity of his testimony before the court decision is delivered, is released from liability.

Article 308 of the Criminal Code of the Russian Federation provides for the responsibility of a witness for refusing to testify, for which a fine of up to 40 rubles is provided, or compulsory work, or corrective labor, or arrest for up to 000 months. As mentioned above, the witness has the right to refuse to testify in cases expressly provided for by law.

It should also be noted that the witness is entitled to reimburse the costs associated with a summons to court, and to receive monetary compensation in connection with the loss of time. When petitioning the court to reimburse the witness for expenses, the court directs the party that invited the witness to the court session to deposit the funds intended for payment to the witness to the deposit account of the court. Settlement with the witness is made after the witness fulfills his obligations.

Thus, the costs associated with the reimbursement of compensation to the witness are paid by the party that invited him, and not from the federal, regional or local budget. As a rule, often witnesses do not know their rights to compensation for lost time and expenses associated with a subpoena. Therefore, when interrogating a witness, the court must explain the rights, duties and responsibilities that must be observed when giving evidence, as well as the rights of the witness to reimbursement of expenses. For example, in an arbitration process, until the person who invited the witness to testify in court pays the witness's legal expenses to the depository account of the court, the court rejects the party's request to summon the witness to the court session.

5. Audio and video recording

Audio and video recording is a novelty of the Code of Civil Procedure of the Russian Federation of 2003. A person participating in a case may petition the court to provide them with an audio or video recording.

A person has the right to apply for the retrieval of evidence in the form of an audio or video recording. At the same time, a person applying for the presentation or request for an audio or video recording must indicate when, by whom and under what conditions the recording was made (Article 77 of the Code of Civil Procedure of the Russian Federation). All audio and video recording media are kept in court. The Court shall take measures to preserve them unchanged.

After the entry into force of the court decision, the media of audio and video recordings are not handed over to the party that provided this evidence. But in exceptional cases, the court may return to the person or organization the audio or video recordings from which they were received. At the request of the person participating in the case, copies of the records made at his expense may be issued to him (Article 78 of the Code of Civil Procedure of the Russian Federation).

6. Written evidence

In Art. 71 Code of Civil Procedure of the Russian Federation defines what is written evidence. This is evidence containing information about the circumstances relevant to the consideration and resolution of the case, acts, contracts, certificates, business correspondence, other documents and materials made in the form of a digital, graphic record, including those received by facsimile, electronic or other communication or in another way allowing to establish the authenticity of the document.

Written evidence includes sentences and court decisions, other court decisions, protocols for the commission of procedural actions, protocols of court sessions, annexes to the protocols for the commission of procedural actions (diagrams, maps, plans, drawings).

Written evidence is always presented in the original or in the form of a duly certified copy.. Original documents are presented when the circumstances of the case, according to laws or other regulatory legal acts, are subject to confirmation only by such documents, when the case cannot be resolved without original documents, or when copies of a document are presented that differ in their content.

Copies of written evidence must also be sent to all persons involved in the case, as well as to the court. A document received in a foreign state is recognized as written evidence in court if its authenticity is not refuted and it is legalized.

Foreign official documents are not subject to legalization and are recognized as written evidence in the case expressly provided for by international treaties. After the entry into force of the court decision, written evidence is returned to the persons who submitted this evidence on the basis of an application.

When issuing written evidence, the judge shall leave certified copies of written evidence in the case. However, prior to the entry into force of the judgment, written evidence may be returned if the court deems it possible.

The Code of Civil Procedure of the RSFSR provided for the possibility of demanding written evidence by the court by sending a request to the appropriate body or person (Article 64 of the Code of Civil Procedure of the RSFSR).

The Code of Civil Procedure of the RSFSR also established the obligation to provide written evidence of persons not participating in the case, who are not able to provide the required written evidence or present it within the time period established by the court, they are obliged to notify the court of this, indicating the reasons.

In case of failure to notify, as well as if the court's requirement to provide written evidence is not fulfilled for reasons recognized by the court as disrespectful, the guilty persons were fined. Moreover, the imposition of a fine did not relieve persons from the fulfillment of the obligation imposed on them by the court.

7. Physical evidence

According to Art. 73 Code of Civil Procedure of the Russian Federation physical evidence are objects that, by their appearance, properties, location or other characteristics, can serve as a means of establishing circumstances that are important for the consideration and resolution of the case.

Material evidence is stored in accordance with the rules of Art. 74 Code of Civil Procedure of the Russian Federation, i.e. in court. However, physical evidence that cannot be delivered to the court shall be kept at its location or in another place determined by the court.

Material evidence must be examined by the court, described in detail, and, if necessary, photographed and sealed. The court and the custodian of material evidence shall take measures to preserve material evidence in an unchanged state. It must be taken into account that the costs of storing physical evidence, the court distributes as follows:

1) the party in whose favor the court decision was made shall be compensated for all court costs incurred in the case by the other party;

2) if the claim is satisfied in part, the court costs shall be awarded to the plaintiff in proportion to the amount of the claims satisfied by the court, and to the defendant in proportion to that part of the claims in which the plaintiff was denied.

It seems necessary to indicate that if a higher court changes the decision of a lower court or makes a new decision, it accordingly changes the distribution of court costs (Article 98 of the Code of Civil Procedure of the Russian Federation).

Material evidence in respect of which the dispute is being carried out, after the entry into force of the court decision, is issued to the party in whose favor the court decision was made.

It should be noted that material evidence subject to rapid deterioration, are immediately inspected and examined by the court at their location or another place, after which they are issued to the party that presented them.

The examination and examination of material evidence subject to rapid deterioration must be recorded.

8. Expert opinion

Expert activity in the Russian Federation is regulated by the Federal Law of May 31, 2001 No. 73-FZ "On State Forensic Expert Activities in the Russian Federation".

Forensic activities in the Russian Federation are carried out on the principles legality, observance of the rights and freedoms of a person and a citizen, the rights of a legal entity, as well as the independence of an expert, objectivity, comprehensiveness and completeness of research conducted using modern achievements of science and technology.

If issues arise during the consideration of the case that require special knowledge in various fields of science, technology, art, craft, the court appoints an expert examination.

Each of the parties and other persons participating in the case shall have the right to submit to the court issues to be resolved during the examination.

The final range of issues on which an expert opinion is required is determined by the court. At the same time, the court must motivate the rejection of questions.

The parties and other persons participating in the case have the right:

1) ask the court to appoint an examination in a specific forensic institution or entrust it to a specific expert;

2) challenge the expert;

3) formulate questions for the expert;

4) get acquainted with the court ruling on the appointment of an expert examination and with the questions formulated therein;

5) get acquainted with the expert's opinion;

6) to petition the court for the appointment of a repeated, additional, complex or commission expert examination.

When a court appoints a forensic examination, the court issues a ruling called "determination on the appointment of an examination" (the definition also indicates the name of the examination).

The content of the court ruling on the appointment of a forensic examination is contained in Art. 80 Code of Civil Procedure of the Russian Federation.

Forensic examination - a procedural action consisting of conducting research and giving an opinion by an expert on issues, the resolution of which requires special knowledge in the field of science, technology, art or craft and which are put before the expert by the court, the judge in order to establish the circumstances to be proved in a particular case (according to Art. 9 of the Federal Law "On state forensic activities in the Russian Federation").

Conducting a forensic examination is entrusted to an expert of a state forensic institution. There are certain requirements for an expert.

The expert must be a citizen of the Russian Federation with a higher professional education and subsequent training in a specific expert specialty.

In Art. 10 of the Federal Law "On state forensic activities in the Russian Federation" defines the concept "expert". This is a certified employee of a state forensic institution, performing a forensic examination in the course of performing his duties.

In Art. 85 Code of Civil Procedure of the Russian Federation are fixed rights and obligations of an expert:

1) the expert is obliged to accept forensic examination;

2) the expert is obliged to conduct a full study of the objects and materials of the case presented to him, to give a reasonable and objective conclusion on the questions put to him;

3) the expert is obliged to appear when summoned by the court for personal participation in the court session and answer questions related to the study and the conclusion given by him;

4) the expert is obliged to send to the court that appointed the examination, a reasoned notice in writing about the impossibility of giving an opinion, if the questions raised go beyond the expert's special knowledge or if the materials and documents are unsuitable or insufficient for conducting research and giving an opinion;

5) the expert ensures the safety of the materials and documents submitted to him for examination and returns them to the court together with an opinion or a report on the impossibility of giving an opinion;

6) the expert is not entitled to independently collect materials for the examination;

7) the expert is not entitled to enter into personal contacts with the participants in the proceedings, if this casts doubt on his disinterest in the outcome of the case;

8) the expert is not entitled to disclose information that became known to him in connection with the examination, including information that may restrict the constitutional rights of citizens, as well as information constituting a state, commercial or other secret protected by law, or to inform anyone about the results of the examination, with the exception of the court that appointed it;

9) the expert, insofar as it is necessary for giving an opinion, has the right to get acquainted with the case materials related to the subject of the expert examination; ask the court to provide him with additional materials and documents for research; to ask questions at the court session to the persons participating in the case and to witnesses; apply for the involvement of other experts in the examination;

10) the expert must ensure the safety of the submitted objects of research and case materials.

After the forensic examination has been carried out by the expert, the expert is obliged to submit his opinion at the request of the court.

According to Art. 9 of the Federal Law "On state forensic activities in the Russian Federation" expert opinion - a written document reflecting the course and results of the research conducted by the expert.

Article 86 of the Code of Civil Procedure of the Russian Federation indicates that the expert's opinion must contain a detailed description of the study, the conclusions made as a result of its conclusions and answers to the questions posed by the court.

If the expert, during the examination, establishes circumstances that are important for the consideration and resolution of the case, about which he was not asked questions, he has the right to include conclusions about these circumstances in his opinion. It must be remembered that the opinion of an expert is not mandatory for the court and is evaluated by the court in the totality of the evidence available in the case.

Forensic examination may be both during the court session and outside the session, if this is due to the nature of the examination being carried out. The persons participating in the case have the right to be present during the forensic examination, if this does not interfere with the process of conducting the examination.

In civil proceedings, allocate several types of forensics:

1) a sole expert examination conducted by one expert on the issues put before him by the court;

2) complex examination. In the implementation of this examination, several experts of various specialties are involved, which is due to the nature of the examination.

This examination is carried out to establish the circumstances of the case using various fields of knowledge or using various scientific areas;

3) commission examination. Two or more experts are required to carry out this examination. Unlike a comprehensive examination, a commission examination is carried out by experts in one field of knowledge.

Experts on the basis of this forensic examination come to a common conclusion and confirm their opinion in writing in the conclusion. An expert who has his own opinion, different from the opinion of other experts, has the right to express his opinion in writing and attach it to the expert opinion, while also being obliged to sign the general opinion.

In practice, there are cases when the forensic examination did not give sufficient clarity and completeness of the answer. The expert answers strictly the questions put before him by the court, without going beyond them.

In this case, it is more expedient to appoint an additional examination to the expert who conducted the initial examination. At the same time, it is necessary to put questions in such a way that the answers contain a more complete amount of information necessary to resolve the case.

There may be doubts about the correctness or validity of the primary conclusion of the expert, and there are obvious contradictions between the conclusions of the experts. In connection with these circumstances, the court may appoint a second examination on the same issues only to another expert or group of experts. When appointing an additional and repeated expert examination, the court shall issue a ruling in which it must indicate the reasons for the disagreement of the court with the primary expert examination.

Author: Gushchina K.O.

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