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Table of contents

1. Civil procedural law (The concept of civil procedural law and civil procedure. Subject and method of civil procedure. Methods and forms of protecting the violated rights of subjects of civil legal relations. Stages of civil proceedings. Types of civil proceedings. System of civil procedural law. Sources of civil procedural law)
2. Principles of civil procedural law (The concept and meaning of the principles of civil procedure. Organizational principles of civil procedure. Functional principles of civil procedure)
3. Civil procedural legal relations (The concept of civil procedural legal relations. Prerequisites for the emergence of civil procedural legal relations. Civil procedural legal capacity. Subjects of civil procedural legal relations. The court as the main participant in civil procedural legal relations)
4. Persons involved in the case (The concept of persons participating in the case. Rights and obligations of persons participating in the case. Conclusion of a settlement agreement. Inappropriate defendant in civil proceedings. Third parties making independent claims regarding the subject of the dispute. Third parties not making independent claims regarding the subject of the dispute. Complicity in civil process. Participation of the prosecutor in civil proceedings. Succession in civil proceedings)
5. Representation in court (Conducting cases in court through a representative. Procedure for registering the powers of a representative)
6. Evidence and proof in civil proceedings (The concept of evidence in civil proceedings. The concept of evidence in civil proceedings. Explanations of the parties and third parties. Witness testimony. Audio and video recordings. Written evidence. Physical evidence. Expert opinion)
7. Order production (The concept of writ proceedings. The right to file an application for a court order. Contents of a court order)
8. Claim proceedings (The concept of a claim. Features characterizing a claim. Types of claims. Filing a claim. Filing a counterclaim. Initiating legal proceedings)
9. 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)
10. The decision of the court of first instance (The concept and essence of a court decision. Contents of a court decision. Determination of the court of first instance. Legal force of rulings of the court of first instance. Legal force of a court decision. Limits of the legal force of a court decision)
11. 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)
12. special production (General characteristics of special proceedings. Establishment of facts of legal significance. Adoption of a child. Recognition of a citizen as missing or declaring a citizen as deceased)
13. Review of decisions and rulings of the court of first instance that have not entered into legal force (Proceedings in the court of appeal. Proceedings in the court of cassation)
14. Review of court decisions that have entered into legal force in a court of supervisory authority
15. Revision of decisions and court rulings that have entered into legal force based on newly discovered circumstances (Grounds for revising an act that has entered into legal force due to newly discovered circumstances. The procedure for applying to the court with an application to revise a judicial act due to newly discovered circumstances. Consideration of an application (submission) based on newly discovered circumstances)
16. Proceedings in court with the participation of foreign citizens (Procedural rights and obligations of foreign persons. Procedural legal capacity of foreign international organizations. Jurisdiction of cases involving foreign citizens. Recognition and execution of decisions of foreign courts)
17. Enforcement proceedings

Lecture No. 1. Civil procedural law

1. The concept of civil procedural law and civil process

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

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

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

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

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

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

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

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

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

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

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

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

2. Subject and method of civil procedure

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

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

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

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

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

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

1) is carried out only by the court;

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

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

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

4. Stages of the civil process

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

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

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

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

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

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

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

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

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

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

▪ the case is beyond the jurisdiction of this court;

▪ the application was submitted by an incapacitated person;

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

5. Types of civil proceedings

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

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

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

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

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

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

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

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

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

1) action proceedings;

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

3) special production;

4) enforcement proceedings.

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

6. The system of civil procedural law

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

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

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

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

7. Sources of civil procedural law

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

1) independence of judges;

2) irremovability of judges;

3) immunity of judges;

4) open trial of cases in all courts;

5) competitiveness and equality of the parties.

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

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

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

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

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

Lecture No. 2. Principles of civil procedural law

1. The concept and meaning of the principles of civil procedure

Principles of civil procedural law represent the fundamental guiding principles (ideas) enshrined in the current legislation, expressing the essence of the norms of civil procedural law and the main directions of state policy in the field of legal regulation of public relations related to the protection of violated or contested rights, freedoms and legitimate interests of subjects of civil process.

The basic principles of civil procedural law are reflected in the Constitution of the Russian Federation. However, a number of fundamental principles are enshrined in a special normative act of the Code of Civil Procedure of the Russian Federation. Important calling principles of civil procedural law is expressed not so much in the proclamation of the rights and obligations of the subjects of civil procedural legal relations, but in ensuring their real implementation.

2. Organizational principles of civil process

The organizational principles should include those principles that are directly related to the organization of the civil process, on which civil proceedings are based. The underlying principle of the entire system is principle of legality. The principle of legality means that civil proceedings are carried out on the basis of the current legislation and the activities of the court, as well as participants in civil legal relations, cannot go beyond the law. The current legislation of the Russian Federation must be strictly observed by all subjects of civil legal relations in order to ensure the tasks set for civil proceedings - to protect the violated or contested rights and legitimate interests of citizens, as well as legal entities. The principle of legality is implemented at all stages of the civil process in strict accordance with Russian law.

Article 108 of the Constitution of the Russian Federation states, "Justice in the Russian Federation is carried out only by the court. Judicial power is exercised through constitutional, civil, administrative and criminal proceedings. The creation of emergency courts on the territory of the Russian Federation is not allowed." From the imperative norms enshrined in the Constitution of the Russian Federation, it follows principle of administration of justice only by the court. This provision is also enshrined in Art. 5 of the Code of Civil Procedure of the Russian Federation: "Justice in civil cases subordinate to courts of general jurisdiction is carried out only by these courts according to the rules established by the legislation on civil proceedings."

The principle of combining a single and collegial court composition.

when considering civil cases. Civil cases in the courts of first instance according to Art. 7 Code of Civil Procedure of the Russian Federation are considered by judges individually or collectively. Cases on complaints against judicial decisions of justices of the peace that have not entered into legal force are considered on appeal by the judges of the respective district courts alone. Civil cases in the courts of cassation and supervisory instances are considered collectively. Prior to the entry into force of the Code of Civil Procedure of the Russian Federation for certain categories of cases, the collegial composition included one professional judge and two people's assessors. At present, the institute of people's assessors has been abolished, and only professional judges who meet the requirements stipulated by federal Russian legislation can be included in the collegial composition.

Article 120 of the Constitution of the Russian Federation indicates that judges are independent and subject only to the Constitution of the Russian Federation and federal laws. This principle allows us to speak of unlimited power given to the court.

Independence of judges suggests:

1) prohibition of interference in the activities of the court;

2) fixing a strict procedure and grounds for the suspension and termination of the powers of the court;

3) the right of a judge to resign;

4) immunity of a judge;

5) state material and social security corresponding to the status of judges;

6) the impossibility of bringing a judge to any responsibility for expressing his opinion and decision in the administration of justice, unless his guilt in criminal abuse is established by a court decision that has entered into legal force;

7) the responsibility of persons guilty of exerting illegal influence on the judges participating in the consideration of the case.

The independence of judges is ensured and the duty of the judge to strictly comply with the Constitution of the Russian Federation and other laws, by-laws in the administration of justice, as well as their powers; not engage in political and entrepreneurial activities; in off-duty relationships, avoid everything that can undermine the authority of the judiciary, the dignity of a judge or raise doubts about his objectivity, fairness and impartiality; not combine work as a judge with other paid work, except for scientific, teaching and other creative activities.

Justice in civil cases is carried out according to the principle equality before law and court all citizens, regardless of gender, race, nationality, language, origin, property and official status, place of residence, attitude to religion, beliefs, membership in public associations and other circumstances, as well as all organizations, regardless of their organizational and legal form of ownership, location, subordination and other circumstances. This principle provides participants in civil proceedings with equal opportunities to protect violated or disputed rights. The principle of equality of all before the law and the court is a constitutional principle, and in relation to civil proceedings means the ability of the parties to the civil process to present evidence, participate in their study, appeal court decisions, file private complaints, file motions and challenges.

The principle of the state language means that civil proceedings are conducted in Russian or in the state language of the republic, which is part of the Russian Federation. According to Art. 9 Code of Civil Procedure of the Russian Federation in military courts, civil proceedings are conducted in Russian. This principle guarantees participants in civil proceedings who do not speak the state language the opportunity to use the services of an interpreter provided by the court. It should be noted that the criminal law provides for liability, which the interpreter is warned about before performing his duties. Article 307 of the Criminal Code of the Russian Federation of June 13, 1996 No. 63-FZ (Criminal Code of the Russian Federation) provides that a deliberately incorrect translation in court or in the course of a preliminary investigation entails criminal liability in the form of a fine or compulsory works, or correctional labor, or arrest for a term up to 3 months. The same acts related to the accusation of a person of committing a grave or especially grave crime shall be punishable by imprisonment for up to 5 years. In the note, the legislator indicates the grounds for exempting the translator from criminal liability if the translator voluntarily declared a deliberately incorrect translation during the inquiry (preliminary investigation) or trial before the court verdict or court decision. The parties can use not only the services of an interpreter provided by the court, but also the services of an interpreter from outside. The question then becomes how to determine that the translator has given the correct translation? This question remains open. To prevent such a situation, it is necessary to educate citizens in a legal culture, respect for the court. In turn, in relation to the court there should be no doubts about its fairness, impartiality.

The principle of public hearing means that the trial is held in public and can be attended by all persons who have reached the age of 18 years. There are cases when closed session, for example, if:

1) state secrets are disclosed at the court session;

2) the interests of minors are affected;

3) it is about the adoption (adoption) of a child;

4) it is provided by the federal legislation.

According to Art. 10 Code of Civil Procedure of the Russian Federation closed hearing it is also allowed upon satisfaction of the petition of the person participating in the case and referring to the need to preserve commercial or other secrets protected by law, the inviolability of the private life of citizens or other circumstances, the public discussion of which can interfere with the proper consideration of the case or entail the disclosure of these secrets or violation of rights and legal the interests of the citizen. Persons who become aware of information at a closed court session are warned by the court of liability for their disclosure.

3. Functional principles of civil procedure

The principle of dispositivity. In civil proceedings, many procedural scientists call the principle of dispositivity the cornerstone principle [4]. This principle allows persons participating in civil proceedings to dispose of their rights at their own discretion in accordance with the goals and objectives of the civil process. It is necessary to clarify that the principle of discretion applies only to individuals and legal entities, and not to government bodies, whose rights arise from the duties established by law and are included in their competence or powers. For example, on the initiative of a person who has applied to the court for the protection of violated or disputed rights and legitimate interests, civil proceedings are initiated, thus this person has exercised the right to go to court for judicial protection of the violated or disputed right. If the person whose right was violated or challenged had not gone to court, then, accordingly, civil proceedings would not have been initiated. Before the judge makes a judgment, the parties can enter into a settlement agreement. The use of this right entails legal consequences. The court will terminate the proceedings. When implementing the principle of discretion, participants in civil proceedings must not forget that their actions must not contradict the norms of Russian legislation and violate the rights and legitimate interests of other participants in civil proceedings.

Competitiveness principle. According to Art. 12 of the Code of Civil Procedure of the Russian Federation, justice in civil cases is carried out on the basis of competitiveness and equality of the parties. The court, while maintaining independence, objectivity and impartiality, manages the process, explains to the persons participating in the case their rights and obligations, warns of the consequences of the commission or non-commission of procedural actions, assists the persons participating in the case in exercising their rights, creates conditions for a comprehensive and complete study of evidence, the establishment of factual circumstances and the correct application of legislation in the consideration and resolution of civil cases. In civil proceedings, the burden of proof lies with the parties to the civil proceedings. In turn, the principle of competition is an equal opportunity for a person who is charged with violating someone's rights to present, in turn, evidence confirming the correctness of his actions. It seems necessary to note that the principle of competitiveness is poorly implemented in proceedings on cases arising from public legal relations. The parties in this proceeding are the applicant and the person concerned. When an applicant submits an application for violation of his rights and legitimate interests through the issuance of normative acts, the court invites the interested person who issued this normative act. In turn, the interested person proves the legitimacy of the adoption of the normative act and that the normative act does not infringe on the rights and legitimate interests of a citizen, legal entity. Upon confirmation of the compliance of the normative act with the norms of Russian legislation, the trial ends and a judgment is issued.

The principle of equality of arms indicates the existence of equal procedural rights, as well as the availability of judicial protection. Each person whose right has been violated has the right to apply to the court for the protection of violated or disputed rights in accordance with the procedure established by civil law. It seems necessary to raise the issue of the availability of judicial protection for low-income citizens or citizens with incomes slightly above the subsistence level. In order to apply to the court, it is necessary to study Russian legislation, correctly draw up a statement of claim, statement or complaint. Many citizens are unable to do this, and they are forced to resort to the help of a lawyer. The legal assistant in this case will be a lawyer whose services are not cheap. For lack of funds, citizens cannot apply for legal assistance to lawyers. The way out of this situation is the creation of free legal aid clinics. This will allow low-income citizens, as well as citizens with an income slightly above the subsistence level, to receive qualified legal assistance, advice and defend their violated or contested rights and legitimate interests in court. In the Code of Civil Procedure of the Russian Federation, along with the principle of competitiveness and equality of the parties, there was an objective truth, the proof of which was mandatory for the court.

The principle of immediacy based on the need for the court to examine the evidence presented in the courtroom. The court is obliged to listen to the parties and other persons participating in the case, since only with a full and objective study of written and material evidence is it possible to make a correct and lawful court decision.

The principle of combining writing and publicity in civil litigation. According to this principle, the parties may orally present their thoughts on the stated requirements in the court session. Oral speech allows you to determine the meaning of what was said through intonation, phrases, which, in turn, allows you to establish the intentions of the parties. At the time when the parties orally state their arguments on the circumstances of the case, the secretary of the court session shall keep a record of the court session, which reflects every word spoken by the parties.

Lecture number 3. Civil procedural legal relations

1. The concept of civil procedural legal relations

Civil procedural legal relations - relations arising between the subjects of civil proceedings in civil cases, regulated by the civil legislation of the Russian Federation.

The moment of occurrence of civil procedural legal relations is the filing of a statement of claim, an application to the court by a person whose rights have been violated, and the fact that a judge has issued a ruling to initiate civil proceedings in the case. There is a controversial opinion about the moment of emergence of civil procedural legal relations. The moment of emergence of civil procedural legal relations is the filing of a statement of claim by a person whose right has been violated, and it does not matter whether a ruling has been made to initiate civil proceedings or to refuse to accept them. Proponents of the first theory argue that civil procedural legal relations arise only after the fact that the judge has issued a ruling to initiate civil proceedings in the case, i.e. after the judge has performed certain procedural actions, which should entail the initiation of civil proceedings and have procedural continuation. When bringing a statement of claim to court, the person whose right has been violated expects a response within 5 days in accordance with Art. 133 Code of Civil Procedure of the Russian Federation. The judge, within 5 days, makes a decision on accepting, refusing to accept, returning or leaving the statement of claim without progress. In any of these cases, the judge makes a ruling. Proponents of the second theory of the emergence of civil procedural legal relations believe that they can arise only in one case - when accepting a statement of claim and initiating civil proceedings in the case. But what about in other cases: return, refusal, leaving the statement of claim without progress? Are civil procedural legal relations really not arising at the moment? It seems that civil procedural legal relations arise when a person whose right has been violated goes to court. From the moment of the appeal of the person whose rights have been violated, the procedural time limits are calculated. After the expiration of the deadlines established by procedural legislation, the court must make one of its decisions. And it doesn’t matter what kind of decision it will be: acceptance, refusal to accept, return or abandonment of the statement of claim, but civil procedural legal relations have already taken place.

If civil procedural legal relations arise only with the issuance of a ruling on the acceptance of a statement of claim and the initiation of civil proceedings in the case, then the question arises as to whether civil procedural legal relations arise when filing a complaint against a judge’s ruling not to accept a statement of claim? Of course they do. Will civil procedural legal relations arise when filing a private complaint against a court ruling that was not issued on time? Of course they will. Why do civil procedural legal relations arise in these cases, but when a claim is filed by a person whose right has been violated, legal relations do not arise? When civil procedural legal relations arise, the person whose right is violated acquires a set of procedural rights and obligations. If we assume that civil procedural legal relations arise when the court makes a ruling to accept a statement of claim and initiate civil proceedings in the case, then how to consider the right of the person who filed the statement of claim to return the filed statement of claim, his obligation to pay the state fee (since without paying the state fee, the claim will the application be left by the court without action)? Based on all of the above, it follows that civil procedural legal relations arise at the moment the statement of claim is accepted in court.

2. Prerequisites for the emergence of civil procedural legal relations

For the emergence of civil procedural legal relations, it is necessary three prerequisites:

1) norm of civil procedural law;

2) existence of a legal fact;

3) legal personality of participants in legal relations.

Rule of law - Coming from the state and protected by it, a generally binding, formally defined prescription, expressed in the form of a rule of conduct or a starting establishment and being a state regulator of social relations. With regard to civil procedural law (in particular, to civil procedural legal relations), the rule of law implies the statutory jurisdiction of a particular case to a court of general jurisdiction or a justice of the peace. However, on the basis of the existence of a rule of law, civil procedural legal relations cannot arise; it is necessary for the subject of civil procedural legal relations to perform a specific action (inaction). Action (inaction) can also be a prerequisite for the emergence of civil procedural legal relations only if it is of a legal nature, i.e. the legal relationship has become a legal fact. A legal fact that gives rise to civil procedural legal relations must be expressed in the form of a court action (for example, the initiation of civil proceedings in a case). The action of the court as an expression of a legal fact is written. Thus, the death of a person participating in civil proceedings does not entail procedural and legal consequences, and for their occurrence, it is necessary for a court to issue a ruling to suspend or terminate the proceedings. Unlike material legal relations in procedural legal relations, the basis for the emergence, change or termination of relations is not an agreement between the court and the parties to the proceedings.

For the emergence of civil procedural legal relations, in addition to the rule of law and legal law, a third prerequisite is necessary - civil legal capacity.

Civil standing - providing the subject of relations with a set of rights that he can use in the process of legal relations, and the range of duties that the subject must perform. Civil legal capacity is determined by law for each subject of relations. Individuals, legal entities, public organizations, labor collectives have civil legal capacity. The legal capacity of state bodies, local self-government bodies, prosecutors is determined by special federal legislation.

3. Civil procedural capacity

In order to use civil procedural legal capacity, that is, to exercise procedural rights and bear procedural obligations, it is necessary to have procedural capacity. According to Art. 37 Code of Civil Procedure of the Russian Federation civil procedural capacity - the ability to exercise procedural rights, fulfill procedural obligations and entrust the conduct of a case in court to a representative. Civil procedural capacity belongs in full to citizens who have reached the age of 18 and organizations. A minor can personally exercise his procedural rights and perform procedural obligations in court from the time of marriage or declaration of full legal capacity (emancipation). According to Art. 21 of the Civil Code of the Russian Federation, legal capacity acquired as a result of marriage is retained in full even in the event of divorce before the age of 18. When declaring a marriage invalid, the court may decide that the minor spouse loses full legal capacity from the moment determined by the court. In cases provided for by federal laws, in cases arising from civil, family, labor, public and other legal relations, a minor aged 14 to 18 years has the right to personally defend his rights, freedoms and legitimate interests in court. However, the court has the right to involve legal representatives of minors in such cases. The rights, freedoms and legitimate interests of minors under the age of 14, as well as citizens recognized as incompetent, are protected in the process by their legal representatives - parents, adoptive parents, guardians, trustees or other persons to whom this right is granted by federal law. The moment of emergence of civil procedural legal capacity and legal capacity for individuals and legal entities does not coincide.

The moment of emergence of civil procedural legal capacity for an individual is the fact of birth, for a legal entity - the emergence of a legal entity.

The moment of the emergence of civil procedural capacity for a natural person is the achievement of the age of eighteen, for a legal entity - the emergence of a legal entity.

4. Subjects of civil procedural legal relations

Subjects of civil procedural legal relations are individuals and legal entities endowed by law with certain procedural rights and obligations in accordance with their position in the case. Depending on the activity of participation of persons, they distinguish three groups:

1) persons administering justice (these include courts of first instance, courts of second instance, courts of supervisory instance, secretaries of the court session);

2) persons participating in the administration of justice (plaintiff, defendant, applicant, interested person, third parties filing independent claims, third parties not filing independent claims, prosecutor, public authorities, local governments);

3) persons assisting in the administration of justice (witnesses, experts, translators, specialists, etc.).

5. The court as the main participant in civil procedural legal relations

The obligatory participant of civil procedural legal relations is the court. The court is a subject of state power, designed to administer justice. According to Art. 14 Code of Civil Procedure of the Russian Federation, the court may act as sole body (if civil proceedings are pending before a court of first instance) and collegiate body (when considering the case in the cassation procedure, in the order of judicial supervision). Under a collegial body, the court consists of three professional judges, one of whom is a presiding judge. In the court of supervisory instance, the judge shall be the presiding judge and at least two professional judges. Issues that arise when considering a case by a court in a collegiate composition are resolved by judges by a majority of votes. None of the judges has the right to abstain from voting. The chairman votes last. A judge who does not agree with the opinion of the majority may state in writing his dissenting opinion, which is attached to the case, but when the court decision is announced, it is not announced.

The main task of the court is the administration of justice in civil cases within the time limits established by law in order to correctly resolve the case in order to protect the violated rights and freedoms of the person who applied for protection to the court.

All participants in civil proceedings in the case carry out their actions under the control of the court. The court directs the procedural activities of the participants in the proceedings and assists them in exercising their procedural rights and procedural duties. All requirements imposed by the court during the civil process are binding on all participants in the process.

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).

Lecture number 5. Representation in court

1. Conducting cases in court through a representative

Persons participating in the case (i.e. parties, third parties who make independent claims regarding the subject of the dispute, third parties who do not make independent claims regarding the subject of the dispute, persons applying to the court for the protection of the rights, freedoms and legitimate interests of other persons or who have entered in the process for the purpose of giving an opinion, applicants and interested persons) may conduct their cases in court through representatives. However, the participation of a representative in the case does not exclude the direct participation of a citizen or a body representing a legal entity (according to Article 48 of the Code of Civil Procedure of the Russian Federation).

Not all citizens can be representatives in court, but only those who have full legal capacity. Article 21 of the Civil Code of the Russian Federation determines that the ability of a citizen, through his actions, to acquire and exercise civil rights, to create civil responsibilities for himself and to fulfill them (civil capacity) arises in full with the onset of adulthood, i.e. upon reaching the age of eighteen. However, the onset of full legal capacity also occurs when the citizen is emancipated.

Declaring a minor a fully capable citizen (emancipated) is made by decision of the body of guardianship and guardianship - with the consent of both parents, adoptive parents or guardian, or in the absence of such consent - by a court decision. Based on this a representative in civil proceedings cannot be a citizen who has reached the age of eighteen, but recognized by the court as incapable or limited in capacity. In Art. 34 of the Code of Civil Procedure of the Russian Federation, the prosecutor is also recognized as a person participating in the case. The prosecutor's office, by virtue of the Federal Law "On the Prosecutor's Office of the Russian Federation", is entrusted with the duty to exercise supervision over the implementation of the norms of the Constitution of the Russian Federation, regulations in force on the territory of the Russian Federation, etc. And, despite the fact that the prosecutor is a person participating in the case, he does not may have a representative in court, as he is a representative of a single federal centralized system.

The cases of organizations are conducted in court by their bodies acting within the powers granted to them by federal law, other legal acts or constituent documents, or representatives.

The powers of the bodies conducting the affairs of organizations are confirmed by documents certifying the official position of their representatives, and, if necessary, by constituent documents.

An authorized representative of the liquidation commission shall act in court on behalf of the liquidated organization.

A person who wishes to conduct his business through a representative is referred to in civil proceedings as principal.

The representative must assist the principal in exercising the procedural rights granted by virtue of procedural legislation and in fulfilling the procedural duties assigned to him. The representative, by his activity, should contribute to the implementation of the tasks of civil proceedings - the protection of violated or disputed rights and legitimate interests of persons whose right has been violated.

worth distinguishing two institutes of civil procedural law:

1) representation;

2) succession.

The representation is intended to assist the principal in exercising his procedural rights and the procedural duties assigned to him. In turn, procedural succession differs from the institution of representation by the purpose, that is, the direct creation, change and termination, of the civil rights and obligations of the represented.

Civil procedural legislation in Art. 51 Code of Civil Procedure of the Russian Federation defines circle of persons who cannot be representatives in court: judges, investigators, prosecutors cannot be representatives in court, except for cases of their participation in the process as representatives of the relevant bodies or legal representatives.

Every citizen has the right to seek the help of a legally competent citizen for representation in court. One of the qualified specialists is a lawyer. If a person involves a lawyer to participate in the case, then it is also necessary to be guided by the norms of special legislation, i.e. the Federal Law "On Advocacy and the Bar in the Russian Federation", which sets out the main provisions for the participation of a lawyer in the process. According to Art. 6 Federal Law "On advocacy and advocacy in the Russian Federation" an attorney cannot participate in a case as a representative if:

1) has an independent interest in the subject matter of the agreement with the principal, different from the interest of this person;

2) participated in the case as a judge, arbitrator or arbitrator, mediator, prosecutor, investigator, interrogating officer, expert, specialist, translator, is a victim or witness in this case, and also if he was an official in whose competence the decision was made in the interests of this person;

3) is in kinship or family relations with an official who took or is taking part in the investigation or consideration of the case of this person;

4) provide legal assistance to the principal, whose interests are contrary to the interests of this person.

The Code of Civil Procedure of the RSFSR also indicated one more reason, in the presence of which a lawyer could not participate in civil proceedings: exclusion from the Bar Association (Article 47 of the Code of Civil Procedure of the RSFSR).

According to Art. 50 Code of Civil Procedure of the Russian Federation, the court may appoint a lawyer as a representative in the absence of a representative of the defendant, whose place of residence is unknown, as well as in other cases provided for by federal law.

A. A. Vlasov in his article raises the issue of amending Art. 34 Code of Civil Procedure of the Russian Federation. He considers it necessary to recognize the lawyer as a person participating in the case [6]. A. A. Vlasov believes that a lawyer is called upon to act as a guarantor of respect for the subjective rights of citizens and organizations in civil proceedings.

As practice shows, most often it is lawyers who act as representatives in court. And this is no coincidence, since they have special knowledge in the field of law and practical experience in exercising representational powers in court, for them the protection of the rights and interests of others and the provision of legal assistance to them is a professional occupation. It should also be noted that distinguishes a lawyer from other representatives the fact that members of the bar association must have a higher legal education, undergo an appropriate internship, have no criminal record and be morally impeccable (according to Article 9 of the Federal Law "On advocacy and advocacy in the Russian Federation"). The activities and membership in the bar associations are constantly monitored by the presidiums of the bar associations, which provide them with methodological assistance.

It is impossible not to agree with the opinion of A. A. Vlasov. A lawyer is indeed the most qualified worker, but he cannot be a person participating in a case. It appears that a lawyer cannot act as a person participating in the case.

The status of a lawyer is considered as the status of an assistant, but not a person who defends the rights, freedoms and legitimate interests of other persons. Acting as a representative, a lawyer represents only one of the parties in civil proceedings; accordingly, he does not have a wide range of procedural rights. There is a certain scope of procedural rights that can be exercised by a representative. At the same time, there are limitations. Without the written permission (power of attorney) of the principal, the lawyer cannot enter into a settlement agreement, change the subject and basis of the claim, etc.

In civil proceedings, several types of representation:

1) legal representation carried out by virtue of law. In Art. 52 of the Code of Civil Procedure of the Russian Federation determines that the rights, freedoms and legitimate interests of incapacitated or not fully capable citizens are protected in court by their parents, adoptive parents, guardians, trustees or other persons to whom this right is granted by federal law. In a case in which a citizen who has been recognized as missing in accordance with the established procedure must participate, the person to whom the property of the missing person has been transferred for trust management acts as his representative. Legal representatives perform on behalf of the persons they represent all procedural actions, the right to perform, which belong to the represented. Legal representatives may entrust the conduct of the case in court to another person chosen by them as a representative;

2) voluntary representation, otherwise called contractual representation. It differs from legal representation in that it arises on a voluntary basis of the principal, and not by virtue of law. Voluntary representation arises through the conclusion of a civil law contract (order or provision of services). Legal and voluntary representation also differs by persons representing the principal. If in legal representation only persons established by law (parents, trustees, guardians, adoptive parents or other persons who are granted this right in accordance with the law) can be representatives, then in voluntary representation any capable person chosen by the principal can be a representative;

3) public representation carried out by public associations and organizations to protect the rights and interests of their members. For example, in Art. 370 of the Labor Code of the Russian Federation of December 30, 2001 No. 197-FZ (Labor Code of the Russian Federation) states that trade union organizations have the right to protect the rights and interests of members of a trade union. In part 1 of Art. 11 of the Federal Law of January 12, 1996 No. 10-FZ "On trade unions, their rights and guarantees of activity" provides for the possibility of trade unions, their associations, primary trade union organizations and their bodies to represent and protect the rights and interests of trade union members on issues of individual labor and labor-related relationships. And in the field of collective rights and interests, trade unions, their associations, primary trade union organizations represent the rights and interests of workers, regardless of their membership in trade unions;

4) representation appointed by the court. Article 50 of the Code of Civil Procedure of the Russian Federation establishes cases when a representative may be appointed by a court. The court appoints a lawyer as a representative in the absence of a representative of the defendant, whose place of residence is unknown, as well as in other cases provided for by federal legislation. In accordance with Art. 20 of the Civil Code of the Russian Federation, the place of residence of a citizen is the place where the citizen permanently or predominantly resides. The place of residence of minors under 14 years of age, or citizens under guardianship, is the place of residence of their legal representatives - parents, adoptive parents or guardians. The place of residence should be distinguished from the place of stay of a citizen (such as a hotel, sanatorium, rest home, boarding house, campsite, tourist base, hospital, other similar institution).

In this case, it is necessary to determine the scope of the lawyer's powers. In Art. 6 of the Federal Law "On advocacy and the advocacy of the Russian Federation" are fixed fundamental rights of a lawyer:

1) collect information necessary for the provision of legal assistance, including requesting certificates, references and other documents from state authorities, local governments, which are obliged to issue to the lawyer the documents requested by him or their certified copies no later than one month from the date of receipt lawyer's request;

2) ask for the consent of persons who allegedly possess information related to the case in which the lawyer provides legal assistance;

3) collect and present items and documents that can be recognized as material and other evidence, in the manner prescribed by the legislation of the Russian Federation;

4) engage specialists on a contractual basis to clarify issues related to the provision of legal assistance;

5) record (including with the help of technical means) the information contained in the materials of the case, in which the lawyer provides legal assistance, while observing state and other secrets protected by law;

6) perform other actions that do not contradict the legislation of the Russian Federation.

Representation on the basis of the charter, regulations and other special acts is carried out in accordance with the norms enshrined in specialized acts, charters, regulations. For example, according to the Consular Charter, consuls represent the interests of foreign citizens and stateless persons in court.

2. The procedure for issuing the powers of a representative

According to Art. 55 of the Code of Civil Procedure of the Russian Federation, the powers of the representative must be expressed in a power of attorney issued and executed in accordance with the law.

Powers of attorney issued by citizens, can be certified by a notary or by the organization in which the principal works or studies, the housing maintenance organization at the principal’s place of residence, the administration of the social security institution in which the principal is located, as well as the inpatient medical institution in which the principal is being treated, by the commander (chief) of the relevant military unit, formation, institution, military educational institution, if powers of attorney are issued by military personnel, employees of this unit, formation, institution, military educational institution or members of their families.

Powers of attorney for persons in prison, are certified by the head of the relevant place of deprivation of liberty.

Power of attorney on behalf of the organization issued under the signature of its head or other person authorized to do so by its constituent documents, sealed with the seal of this organization. Legal representatives present to the court documents certifying their status and powers. The right of a lawyer to appear in court as a representative is certified by a warrant issued by the relevant bar association.

Registration of powers of a lawyer also provided for in Art. 6 of the Federal Law "On advocacy and the advocacy of the Russian Federation": the powers of a lawyer participating as a representative of the principal in civil proceedings, as well as as a representative of the principal, are regulated by the relevant procedural legislation of the Russian Federation. In this case, the lawyer must have a warrant for the execution of the assignment issued by the relevant legal entity. So for participation in the case of a lawyer, two documents are required - warrant and power of attorney of the person who invited him to represent him in civil proceedings. The powers of a representative may also be determined in an oral statement recorded in the minutes of the court session, or in a written statement of the principal in court.

In the Civil Code of the Russian Federation in Art. 185 defines a power of attorney: a power of attorney is a written authorization issued by one person to another person for representation. The validity period of the power of attorney cannot exceed 3 years. If the term is not specified in the power of attorney, it remains valid for 1 year from the date of its execution. A power of attorney that does not indicate the date of its execution is void (Article 186 of the Civil Code of the Russian Federation). The person to whom the power of attorney has been issued must personally perform those actions for which he is authorized. It may delegate their commission to another person, if authorized to do so by a power of attorney or forced to do so by force of circumstances to protect the interests of the person who issued the power of attorney. The delegate of authority to another person must notify the issuer of the power of attorney and provide him with the necessary information about the person to whom the authority has been transferred. Failure to fulfill this obligation makes the person who delegated the powers responsible for the actions of the person to whom he delegated the powers as if they were his own (Article 187 of the Civil Code of the Russian Federation). The period of validity of a power of attorney issued by way of substitution may not exceed the period of validity of the power of attorney on the basis of which it was issued.

The power of attorney is terminated due to:

1) expiration of the power of attorney;

2) cancellation of the power of attorney by the person who issued it;

3) refusal of the person to whom the power of attorney was issued;

4) termination of the legal entity on behalf of which the power of attorney was issued;

5) termination of a legal entity to which a power of attorney has been issued;

6) the death of the citizen who issued the power of attorney, recognition of his incapacity, limited capacity or missing;

7) the death of a citizen to whom a power of attorney has been issued, recognition of him as incapable, with limited capacity or missing.

The person who issued the power of attorney may at any time revoke the power of attorney or reassignment, and the person to whom the power of attorney has been issued may revoke it. The agreement to waive these rights is void.

With the termination of the power of attorney, the sub-power of attorney loses its force (Article 188 of the Civil Code of the Russian Federation).

Upon termination of the power of attorney, the person to whom it was issued, or his successors, are obliged to immediately return the power of attorney (Article 189 of the Civil Code of the Russian Federation).

It is worth distinguishing between the following types of power of attorney:

1) a one-time power of attorney issued by the principal for the participation of a representative in one case in one court;

2) a special power of attorney issued by the principal to conduct one case by a representative in all judicial instances;

3) a general power of attorney issued by the principal to conduct all civil cases affecting the interests of the principal in all judicial bodies.

Powers of Representatives enshrined in Art. 54 Code of Civil Procedure of the Russian Federation: the representative has the right to perform all procedural actions on behalf of the represented. However, the right of a representative to sign a statement of claim, present it to the court, refer the dispute to arbitration, file a counterclaim, complete or partial waiver of claims, reduce their size, recognize the claim, change the subject or grounds for the claim, conclude a settlement agreement, transfer authority to another person (transfer), appealing a court decision, presenting a writ of execution for collection, receiving property or money awarded must be specifically stipulated in the power of attorney issued by the represented person.

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.

Lecture number 7. Mandatory proceedings

1. The concept of writ proceedings

Order production is a separate type of production, which is carried out in a civil process. At the end of writ proceedings, a court order is issued, which has the force of an independent judicial decision in civil cases, the range of which is specifically defined by procedural legislation.

Writ proceedings are a novelty of the Code of Civil Procedure of the Russian Federation, since this type of proceedings was not provided for in the Code of Civil Procedure of the RSFSR.

So, court order - a court ruling issued by a single judge on the basis of an application for the recovery of sums of money or for the recovery of movable property from the debtor (Article 121 of the Code of Civil Procedure of the Russian Federation). It should be noted that a court order can be issued on the basis of an application only for the recovery of sums of money and for the recovery of movable property.

From the definition of a court order, it follows that writ proceedings are considered by a justice of the peace alone, who acts on behalf of the court of first instance.

However, if the justice of the peace is challenged and it is impossible to transfer the case to another justice of the peace, or if there is no justice of the peace in the given district, the case may also be considered by the district court alone.

Need to know requirements for which a court order can be issued (Article 122 of the Code of Civil Procedure of the Russian Federation). A court order is issued if:

1) the claim is based on a notarized transaction;

2) the claim is based on a transaction made in a simple written form;

3) the demand is based on a notary's protest of the bill of non-payment, non-acceptance and undated acceptance;

4) a claim has been made for the recovery of alimony for minor children, not related to establishing paternity, contesting paternity (maternity) or the need to involve other interested parties;

5) a demand has been made to recover from citizens arrears in taxes, dues and other obligatory payments;

6) a claim has been made for the recovery of wages accrued but not paid to the employee;

7) a claim has been filed by the internal affairs body, bailiff unit for the recovery of expenses incurred in connection with the search for the defendant, or the debtor and his property, or the child taken from the debtor by a court decision, as well as the costs associated with the storage of the arrested property seized from debtor, and storage of the debtor's property evicted from the dwelling occupied by him.

Order production has a number of features. There is no plaintiff and defendant the parties are referred to as "creditor" ("collector") and "debtor". The initiative to initiate writ proceedings, of course, belongs to the creditor, whose material right has been violated by the debtor.

It is worth noting that in writ proceedings, the prosecutor can also act in defense of the creditor in the process. In this case, this is possible if a citizen, for health reasons, age, incapacity and other valid reasons, cannot protect the violated right.

It must be remembered whether the reason for the absence of the creditor is valid or not. As a rule, all types of proceedings in civil proceedings go through all stages of civil proceedings, with the exception of exceptional stages that arise on the initiative of the persons participating in the case (proceedings in the court of appeal, cassation, supervisory instance).

There is no trial stage in writ proceedings. This is the main difference between writ proceedings and other types of proceedings in civil proceedings.

When issuing an order, the presence of the debtor is not required.

The debtor is subsequently notified of the issuance of the court order by presenting the debtor with a copy of the court order, which, in turn, has the right to file objections regarding its execution within 10 days from the date of receipt of the order (Article 128 of the Code of Civil Procedure of the Russian Federation). There is one more difference (or one more feature) of writ proceedings.

To execute a court order, it is not necessary to issue a writ of execution, since, according to the norms of procedural legislation, it is at the same time an executive document and is executed in the manner established for the execution of court decisions (Part 2 of Article 121 of the Code of Civil Procedure of the Russian Federation).

There is one more point to which attention should be paid.

A distinctive feature of order production is also that the court order on the stated requirements must be issued within 5 days from the date of receipt of the application for the issuance of a court order to the court.

2. Right to apply for a writ

The right to file an application for a court order belongs to the person whose material right has been violated. When issuing a court order on the merits of the stated claim, the judge is obliged to indicate in it the reimbursement of expenses for the payment of the state fee at the expense of the debtor.

If the debtor raises objections to the execution of the court order, the court cancels the court order and notifies the claimant of this within 3 days. At the same time, the court explains that the claim declared by the debtor can be considered in the course of action proceedings (Article 129 of the Code of Civil Procedure of the Russian Federation).

The basis for the initiation is the application of the claimant (creditor). The procedural law establishes the requirements that must be met when writing a statement.

One of the mandatory features is a written form (Article 124 of the Code of Civil Procedure of the Russian Federation).

The application for a court order must include:

1) the name of the court to which the application is submitted;

2) the name of the exactor, his place of residence or location;

3) the name of the debtor, his place of residence or location;

4) the claim of the exactor and the circumstances on which it is based;

5) documents confirming the validity of the claim of the recoverer;

6) list of attached documents;

7) in the case of claiming movable property, the application must indicate the value of this property.

An application for issuing a court order is signed by the recoverer or a person authorized to perform these actions. The powers of the representative must be formalized by a power of attorney.

In contrast to the statement of claim, the requirements of which are specified in Art. 131 Code of Civil Procedure of the Russian Federation, in the application for issuing a court order, there is no need to indicate the surname, name of the representative, as well as the scope of powers granted to him.

This is due to the specifics of order production.

Writ proceedings are carried out without summoning the parties to trial, without the parties presenting evidence.

It also suggests that the creditor's application must already be based on substantive law.

On the acceptance of the application for court proceedings, the judge issues a ruling, on the basis of which writ proceedings are initiated.

The court is also authorized to refuse to accept the application, return the application and leave the application without movement. For writ proceedings, there is no separate rule governing the refusal, return or abandonment of an application, but the general rules that are indicated for action proceedings are applied (Articles 134, 135, 136 of the Code of Civil Procedure of the Russian Federation).

Writ proceedings are characterized by a refusal to accept an application if the requirements on the basis of which the application is written are not contained in the list specified in Art. 122 Code of Civil Procedure of the Russian Federation.

3. Content of the court order

A court order is both a court decision on the presented requirements and an executive document. In this regard, the court order must contain all the data necessary for its proper execution.

Like a court decision issued in the course of proceedings in other types of proceedings, a court order must meet the conditions of legality and validity. However, the legality and validity of the court order are quite specific.

Any judgment consists of four parts:

1) introductory;

2) descriptive;

3) motivational;

4) resolutive.

The court order contains only two parts: introductory and operative.

However, a court order will be considered lawful and justified if the issuance of a court order was based on the relevant norms of procedural and substantive law.

It should be noted that the court order acquires the force of an executive document only after it enters into force, i.e. after 10 days.

In accordance with Art. 127 Code of Civil Procedure of the Russian Federation the court order must contain:

1) production number and date of issue of the order;

2) the name of the court, the surname and initials of the judge who issued the order;

3) the name, place of residence or location of the claimant;

4) name, place of residence or location of the debtor;

5) the law on the basis of which the claim is satisfied;

6) the amount of sums of money to be collected or the indicated movable property to be claimed, indicating its value;

7) the amount of the penalty, if its collection is provided for by federal law or the contract, as well as the amount of penalties, if any are due;

8) the amount of the state duty to be collected from the debtor in favor of the recoverer or to the income of the relevant budget;

9) details of the exactor's bank account, to which the funds subject to collection must be transferred, if the foreclosure is carried out using funds from the budgets of the budget system of the Russian Federation.

When collecting alimony for minor children, the date and place of birth of the debtor, his place of work, the name and date of birth of each child for the maintenance of which the alimony was awarded, the amount of payments collected monthly from the debtor, and the period for their collection are indicated.

The court order is drawn up on a special form in two copies, which are signed by the judge. One copy of the court order remains in court proceedings. A copy of the court order is made for the debtor.

Lecture number 8. Claim proceedings

1. The concept of a claim. Features characterizing the claim

There is no single definition of a claim in civil procedural legislation. Among scientists there is also no single definition, but there are several points of view on the concept of "claim":

1) from a substantive point of view, a claim is a material claim itself, that is, a legal relationship;

2) from a procedural and legal point of view, a claim is a means of protecting a violated or contested right or legally protected interest of a subject of civil legal relations.

From a substantive and procedural point of view, it should be characterized both from the material and from the procedural side. Since disputes about law are resolved not only by courts of general jurisdiction, but also by other jurisdictional bodies, representatives of this point of view call a claim filed in court or another jurisdictional body for consideration and resolution in a certain procedural order the substantive claim of one person to another, arising from the disputed substantive legal relationship8.

In civil procedural law, there are several features that characterize the claim: subject, basis, content, as well as some authors refer to the parties.

The subject of the claim is a violated right.

Under grounds of action should be considered those facts that indicate a violation of the rights protected by law interests. In the statement of claim, the plaintiff must indicate what the violation or threat of violation of rights, freedoms or legitimate interests is, that is, the basis that prompted the plaintiff to bring the statement of claim to court to protect his violated or disputed rights.

Content of the claim - a requirement to the court aimed at protecting and restoring a violated legally protected right or interest. Some authors highlight another feature - the parties to the claim. They hold this view because without the presence of parties with mutually exclusive interests, a claim cannot arise.

2. Types of claims

Scientists theorists distinguish 3 types of claims:

1) claims for award. In the legal literature, they are also called enforcement actions, as they are the owners of the executive force. Lawsuits for awards are aimed at the enforcement of a judgment. It follows from this that a judgment given in an action for an award must always be enforced, if not voluntarily, then by force;

2) claims for recognition. The parties apply with this claim to confirm this or that fact, otherwise they are called establishing claims. So, for example, a typo in the surname was made in the birth certificate of a citizen. When entering, for example, into the right of inheritance, there are disagreements. In order to enter into the right of inheritance, it seems necessary to eliminate these shortcomings, i.e., a court decision is necessary. Claims for recognition can be either positive or negative. Positive claims are aimed at establishing the existence of a particular legal relationship, and negative claims are aimed at establishing the absence of a particular fact;

3) transformative claims. Claims aimed at making decisions whose content has a substantive legal effect - law-forming or law-terminating. [8] In this case, the subject of a transformative claim is the plaintiff’s right to demand from the court the establishment, change or termination of a particular legal relationship, right or obligation.

3. Making a claim

A person who believes that his rights or legitimate interests have been violated or challenged has the right to file a claim. The form of appeal to the court in cases of action proceedings is a statement of claim, which is submitted in writing.

Claim under Art. 131 Code of Civil Procedure of the Russian Federation must contain the following information:

1) the name of the court to which the application is submitted;

2) the name of the plaintiff, his place of residence or, if the plaintiff is an organization, its location, as well as the name of the representative and his address, if the application is submitted by a representative;

3) the name of the defendant, his place of residence or, if the defendant is an organization, its location;

4) data on violation or threat of violation of the rights, freedoms or legitimate interests of the plaintiff and his claim;

5) the circumstances on which the plaintiff bases his claims and the evidence confirming these circumstances;

6) the price of the claim, if it is subject to assessment, as well as the calculation of the sums of money recovered or disputed;

7) information on compliance with the pre-trial procedure for applying to the defendant, if this is established by federal law or provided for by the contract;

8) a list of documents attached to the application.

Place of residence of a citizen the place where a citizen permanently or predominantly resides is recognized.

Place of residence of minorsunder fourteen years of age, or citizens under guardianship, the place of residence of their legal representatives, adoptive parents, and guardians is recognized (Article 20 of the Civil Code of the Russian Federation).

Place of residence of persons sentenced to imprisonment, is their place of residence before conviction, but along with it it is necessary to indicate the postal address at the place of serving the sentence. This is necessary to send the plaintiff court notices and other documents presented by other persons participating in the case.

Location of the legal entity is the place of its state registration, unless otherwise specified in its constituent documents. State registration of a legal entity is carried out at the location of the property of the legal entity, which is indicated in the constituent documents by the founders.

If the required application is submitted by the prosecutor in defense of the interests of the Russian Federation, constituent entities of the Russian Federation, municipalities or in defense of the rights, freedoms and legitimate interests of a citizen or an indefinite circle of persons, then it must be indicated what exactly their interests are, what right is violated, and it must also contain a reference to a law or other regulatory legal act that provides for ways to protect these interests. The statement of claim must be signed by the plaintiff or a representative who, in accordance with the procedure established in the procedural legislation, is entitled to sign the statement and present it to the court. The rules for filing a statement of claim by the prosecutor also apply to the actions of state authorities, local governments, public organizations when they participate in a case in order to protect the rights and interests of others.

When filing a statement of claim, the plaintiff or his representative must indicate the normative act to which they refer, on the basis of which the court must make a judgment. In pursuance of the adversarial principle, pointing out the circumstances and citing relevant evidence, the defendant is given the opportunity to properly prepare for the protection of his rights and interests.

The following documents must be attached to the claim:

1) its copy in accordance with the number of defendants and third parties;

2) a document confirming the payment of the state fee;

3) a power of attorney or other document certifying the authority of the plaintiff's representative;

4) documents confirming the circumstances on which the plaintiff bases his claims, copies of these documents for the defendants and third parties, if they do not have copies;

5) calculation of the amount of money to be recovered or disputed, signed by the plaintiff, his representative, with copies in accordance with the number of defendants and third parties, etc.

4. Counterclaim

During the trial, the defendant may also bring a claim against the plaintiff to protect his rights and legitimate interests. A claim filed by a defendant against a plaintiff is called counterclaim. A counterclaim is characterized by the fact that it can only be declared in a process that has already arisen, and it is also considered together with the original claim filed by the plaintiff. Meanwhile, a counterclaim brought by the defendant against the plaintiff may be considered independently in a separate civil proceeding. Filing a counterclaim in an already initiated process is convenient for the court, since the interests of citizens who have applied for protection can be considered immediately, without initiating other civil proceedings. The possibility of filing a counterclaim is provided for by Art. 137 of the Code of Civil Procedure of the Russian Federation, which states that the defendant has the right, before the court makes a decision, to file a counterclaim against the plaintiff for joint consideration with the original claim. It should be noted that the presentation of a counterclaim is carried out according to the general rules for filing a claim, that is, the counterclaim must meet the requirements of Art. 131, 132 Code of Civil Procedure of the Russian Federation. Procedural law indicates on the conditions for accepting a counterclaim (Article 138 of the Code of Civil Procedure of the Russian Federation):

1) the counter claim is directed towards the offset of the initial claim;

2) the satisfaction of the counterclaim excludes, in whole or in part, the satisfaction of the initial claim;

3) there is a mutual relationship between the counterclaims and the original claims, and their joint consideration will lead to faster and more correct consideration of disputes.

5. Initiation of action proceedings

The basis for initiating civil proceedings in a case is the acceptance of a statement of claim for proceedings. So, if the above requirements for the statement of claim are not observed, the court may make the following decision: refuse to accept the statement of claim, return the statement of claim, leave the statement of claim without movement.

The court may refuse to accept a statement of claim in the following cases (Article 134 of the Code of Civil Procedure of the Russian Federation):

1) the application is not subject to consideration and resolution in civil proceedings, since the application is considered and resolved in a different judicial procedure;

2) the application is presented in defense of the rights, freedoms and legitimate interests of another person by a state body, local government body, organization, citizen who has not been granted such a right;

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

4) there is an arbitral tribunal decision that has become binding on the parties and adopted in a dispute between the same parties, on the same subject and on the same grounds, except if the court refused to issue a writ of execution for the enforcement of the arbitral tribunal's decision.

The issuance of a court ruling to refuse to accept the statement of claim prevents the applicant from re-applying to the court with a claim against the same defendant, on the same subject and on the same grounds. In accordance with this law, it is possible for a person who was refused to accept a statement of claim to file a private complaint.

The return of the claim may take place if (Article 135 of the Code of Civil Procedure of the Russian Federation):

1) the plaintiff has not complied with the pre-trial procedure for settling the dispute or the plaintiff has not presented documents confirming compliance with the pre-trial procedure for settling the dispute;

2) the case is beyond the jurisdiction of this judge;

3) the statement of claim has been filed by an incompetent person;

4) the statement of claim is not signed or the statement of claim is signed or filed by a person who does not have the authority to sign it and present it to the court;

5) prior to the issuance of a court ruling on accepting the statement of claim for court proceedings, the plaintiff received an application for the return of the statement of claim;

6) in the proceedings of this or another court or arbitral tribunal there is a case on a dispute between the same parties, on the same subject and on the same grounds.

The issuance of a court ruling on the return of a statement of claim does not prevent a new appeal to the court with the same claim and on the same grounds.

If the statement of claim is drawn up without complying with the requirements provided for in Art. 131, 132 Code of Civil Procedure of the Russian Federation, the court issues a ruling on dismissal of a claim, about which the person who submitted the application is notified. Leaving the statement of claim without motion by the court enables the plaintiff to correct the existing shortcomings, without the elimination of which it is impossible to accept the statement of claim for proceedings. In its ruling on refusal to accept a statement of claim, the court sets the time limits within which the shortcomings must be eliminated. A private complaint may be filed against a court ruling to leave a statement of claim.

If, within 5 days from the date of receipt of the statement of claim by the court, he decided to accept the statement of claim, a court ruling is issued on the acceptance of the statement of claim and on the initiation of civil proceedings in the case. In this court ruling, the date of the court session is set, the parties, as well as third parties, the presence of the stated petitions are determined.

When a lawsuit is initiated, measures to secure the claim may be taken. The basis for securing a claim in accordance with Art. 139 Code of Civil Procedure of the Russian Federation is a statement of the persons involved in the case. Securing a claim is allowed in any state of the case, even if the failure to take measures to secure a claim may make it difficult or impossible to enforce a court decision. Upon receipt of an application from the persons participating in the case, the court shall issue a ruling on taking measures to secure the claim.

Measures to secure a claim can be (Art. 140 Code of Civil Procedure of the Russian Federation):

1) seizure of property belonging to the defendant and located by him or other persons;

2) prohibition to the defendant to perform certain actions;

3) prohibition of other persons from performing certain actions relating to the subject of the dispute, including transferring property to the defendant or fulfilling other obligations in relation to him;

4) suspension of the sale of property in the event of a claim for the release of property from arrest (exclusion from the inventory);

5) suspension of recovery under an executive document challenged by the debtor in court.

The list of measures to secure a claim is exhaustive. However, the legislator provides that the court may, if necessary, take other measures to secure the claim, which must meet the goals set for the court. Do not forget that persons who violate the restrictions established by the court are subject to a fine of up to 10 minimum wages. In addition, the plaintiff has the right to demand in court from these persons compensation for losses caused by failure to comply with the court ruling on securing the claim. The judge immediately informs the appropriate state bodies or local self-government bodies that register property or rights to it, as well as their restrictions (encumbrances), transfer and termination of the measures taken to secure the claim. At the initiative of the defendant or the court, measures to secure the claim may be cancelled. The issue of canceling the securing of the claim is considered at the court session. The parties are notified of the holding of the court session, but their failure to appear does not prevent consideration of the issue of canceling the measures to secure the claim. It is necessary to note some features of the appeal of the court ruling on securing the claim. Like all other court rulings, it can also be appealed in the manner prescribed by law. If the court ruling on securing the claim was issued without notifying the person who filed the complaint, then the term for filing the complaint is calculated from the day when such a person became aware of this ruling. It should also be noted that the defendant, after the entry into force of the court decision by which the claim was denied, has the right to bring a claim against the plaintiff for damages caused to him by measures to secure the claim.

Lecture No. 9. Litigation

1. Preparing the case for trial

Preparing a case for trial is an independent and mandatory stage of the civil process. After the acceptance of the statement of claim and the decision by the judge to initiate civil proceedings in the case, the next stage of the civil process begins - preparing a case for trial. The judge issues a ruling on the preparation of the case for trial and in his ruling indicates the actions to be taken by the parties, other persons participating in the case in order to ensure the correct and timely consideration and resolution of the case.

Preparing a case for trial as a stage of the civil process pursues the following goals and objectives according to Art. 148 Code of Civil Procedure of the Russian Federation:

1) clarification of the factual circumstances that are important for the correct resolution of the case;

2) determination of the law to be followed in resolving the case, and establishment of legal relations between the parties;

3) resolving the issue of the composition of the persons participating in the case and other participants in the process;

4) presentation of the necessary evidence by the parties, other persons participating in the case;

5) possible reconciliation of the parties.

At the stage of preparing the case for trial, the parties must perform procedural actions determined by procedural legislation. The plaintiff or his representative must provide the defendant with copies of evidence substantiating the factual grounds for the claim; file petitions before the judge to demand evidence that he cannot obtain on his own without the help of the court. In turn, the defendant or his representative, if necessary, clarify the claims of the plaintiff and the factual grounds for these claims; present to the plaintiff or his representative and the court objections in writing regarding the claims; transfer to the plaintiff or his representative and the judge the evidence substantiating the objections to the claim. They also have the right to file petitions before the judge for the reclamation of evidence that cannot be obtained on their own without the help of the court.

In addition to the parties, the court must also prepare for the trial, i.e., carry out those actions that, when considering the case on the merits, will help the judge make a correct, and most importantly, a lawful and justified decision (Article 150 of the Code of Civil Procedure of the Russian Federation).

When preparing a case for trial, the court:

1) explain to the parties their procedural rights and obligations;

2) question the plaintiff or his representative on the merits of the stated claims and propose, if necessary, to submit additional evidence within a certain period of time;

3) interrogates the defendant on the circumstances of the case, finds out what objections there are regarding the claim and what evidence these objections can be confirmed;

4) resolves the issue of co-plaintiffs, co-defendants and third parties joining the case without independent claims regarding the subject of the dispute, and also resolves issues of replacing an improper defendant, joining and separating claims;

5) takes measures to conclude a settlement agreement between the parties and explains to the parties their right to apply for a dispute resolution to an arbitration court and the consequences of such actions;

6) notify the citizens or organizations interested in the outcome of the case about the time and place of the trial;

7) resolve the issue of calling witnesses;

8) appoints an examination and an expert to conduct it, and also resolves the issue of involving a specialist, a translator in the process;

9) at the request of the parties, other persons participating in the case, their representatives, demand from organizations or citizens evidence that the parties or their representatives cannot obtain on their own;

10) in cases of urgency, carry out, with notification of the persons participating in the case, an on-site inspection of written and material evidence;

11) send letters of request;

12) take measures to secure the claim;

13) resolves the issue of holding a preliminary court session, its time and place;

14) perform other necessary procedural actions.

In civil proceedings, in some cases it becomes necessary to obtain evidence at the request of one of the parties located in another area or city. The court hearing the case instructs the relevant court in whose territory the evidence is located to carry out certain procedural actions. In this case, the court that has ordered the conduct of procedural actions on behalf of the court issues a ruling that briefly outlines the content of the case under consideration and indicates information about the parties, their place of residence or their location, the circumstances to be clarified, and the evidence that the court carrying out the request must collect. It should be noted that this order is binding on the court to which it is addressed.

The civil procedural legislation establishes the period within which a court order must be executed - 1 month from the date of receipt of the court order. Sending a letter of request may be grounds for suspending the proceedings. The court, which received a court order to conduct procedural actions, carries out the court order and conducts a court hearing according to the rules established by civil procedural legislation. Persons participating in the case are duly notified of the place and time of the court hearing. However, the failure of persons participating in the case to appear is not an obstacle to the execution of a court order. When executing a letter of request, all protocols drawn up and evidence collected are immediately sent to the court hearing the case.

At the stage of preparing the case for trial, a court session may be held, it is in accordance with Art. 152 Code of Civil Procedure of the Russian Federation will be called "preliminary hearing". The purpose of the preliminary court session is to consolidate the procedural actions of the parties committed in preparing the case for trial, to determine the circumstances that are important for the correct consideration and resolution of the case, to determine the sufficiency of evidence in the case, to study the facts of missing the deadlines for applying to the court and the limitation periods.

The preliminary hearing is conducted by a single judge. The parties are notified of the time and place of the preliminary court hearing. The parties at the preliminary court hearing have the right to present evidence, present arguments, and make motions. In complex cases, taking into account the opinions of the parties, the judge may set a period for holding a preliminary court hearing that goes beyond the time limits established by procedural legislation for the consideration and resolution of cases. If there are circumstances that provide grounds for suspension and termination of the proceedings, the proceedings in the case at the preliminary court hearing may be suspended or terminated, and the application left without consideration. When deciding to suspend or terminate proceedings in a case, the judge issues a ruling against which a private complaint can be filed.

In a preliminary court session, the objection of the defendant regarding the absence by the plaintiff without good reason of the limitation period for the protection of the right and the period established by civil law for applying to the court may be considered.

When it is established that the statute of limitations or the deadline for going to court was missed without good reason, the judge decides to dismiss the claim without examining other factual circumstances in the case. The decision of the court can also be appealed in the appellate or cassation procedure.

Civil procedural legislation enshrined protocol obligatory principle. According to Art. 228 of the Code of Civil Procedure of the Russian Federation during each court session of the court of first instance, as well as when each procedural action is performed outside the court session, a protocol is drawn up, including at the preliminary session, the protocol of the preliminary session is drawn up in accordance with the provisions provided for in Art. 229 and 230 Code of Civil Procedure of the Russian Federation.

After the preliminary preparation of the case for trial, when the judge makes a decision that the case is prepared for consideration on the merits, the judge issues a ruling appointing the case for trial. The parties, persons participating in the case, other participants in the civil process are duly notified of the place and time of the trial and consideration of the case on the merits.

2. Litigation

Litigation is one of the important stages of the civil process, since it is at this stage that the main task of civil proceedings is realized - the protection of violated or contested rights, freedoms and legitimate interests of participants in the civil process. Exactly on At this stage, by issuing a decision, the court restores the rights and protects the legally protected interests.

The initiation of civil proceedings on a case and the preparation of a case for trial are the organizational stages of a civil process. It is at these stages that the parties present the necessary evidence to the court, petitions are filed, the possibility of securing a claim by the court is realized, court orders are executed so that at the trial stage the judge does not dwell on organizational issues, but proceeds immediately to direct resolution and consideration of the case on the merits, more precisely, to protect the violated or disputed right and legitimate interest of the person.

The procedural law provides term for consideration and resolution of a civil case on the merits: for courts of general jurisdiction, the period is 2 months, and for justices of the peace, the period during which the case must be considered is determined at 1 month. Such a distinction is due to the categories of complexity of cases that are assigned to one or another court in accordance with jurisdiction.

The federal law or the norms of the civil procedural legislation may establish a reduced term for the trial. For example, part 2 of Art. 154 of the Code of Civil Procedure of the Russian Federation indicates that cases of reinstatement at work, the recovery of alimony are considered and resolved before the expiration of a month.

The trial of a civil case takes place in a court session with the obligatory notification of the persons participating in the case of the time and place of the session.

The trial is conducted by a single judge. In cases provided for by procedural legislation, the court hearing is held in a collegial composition. It is worth noting that the court hearing is always conducted by the magistrate alone. In a collegial hearing of a case, the court consists of three professional judges, one of whom is the presiding judge. According to Art. 156 of the Code of Civil Procedure of the Russian Federation, the presiding judge presides over the court hearing, creates conditions for a comprehensive and complete examination of the evidence and circumstances of the case, and eliminates from the trial everything that is not related to the case under consideration.

In case of objections of any of the participants in the proceedings regarding the actions of the presiding judge, these objections are recorded in the protocol of the court session. The presiding judge gives explanations regarding his actions, and during the collegiate consideration of the case, explanations are given by the entire composition of the court. The presiding judge takes the necessary measures to ensure proper order in the court session. The orders of the presiding judge are obligatory for all participants in the process, as well as for citizens present in the courtroom.

Consideration of the case on the merits in civil proceedings takes place with strict observance principles of immediacy of the examination of evidence in court, for which it is necessary to hear the explanations of the parties and third parties, the testimony of witnesses, expert opinions, consultations and explanations of specialists, read written evidence, examine material evidence, listen to audio recordings and watch video recordings. The court session is held orally, while the entire course of the trial is recorded in the minutes of the court session, which is also written evidence.

The trial is conducted with the same composition of judges. Through this provision, the constitutional principle of irremovability of judges is implemented (Article 121 of the Constitution of the Russian Federation). The powers of a judge may be terminated or suspended only in the manner and on the grounds provided for by the Federal Law on the Status of Judges in the Russian Federation. If grounds arise for the removal or replacement of one of the judges during the consideration of a case, the proceedings must be carried out from the very beginning. An important principle directly related to litigation is the principle of continuity. Part 3 Art. 157 of the Code of Civil Procedure of the Russian Federation states that the court hearing in each case takes place continuously, with the exception of the time designated for rest. Until the end of the consideration of the initiated case or until the adjournment of its proceedings, the court has no right to consider other civil, criminal and administrative cases. This rule is mandatory for the court and should not be violated during civil proceedings.

The question arises as to whether a judge, during a break in a trial in a civil case (action proceedings, proceedings in cases arising from public legal relations, special proceedings, etc.), can issue a court order? Writ proceedings have a significant difference from other types of civil proceedings - there is no stage of consideration and resolution of the case on the merits. However, this does not give judges the right to make an exception to the general rule. The law provides for an imperative norm that cannot be violated, therefore, even the issuance of an order during a break of judges should not take place. Signing a court order or other document in violation of Art. 157 Code of Civil Procedure of the Russian Federation, i.e. during the conduct of another case, can be considered as a gross violation of procedural norms, and a judgment issued by a judge may be canceled by a higher court.

The trial can be divided into several components: the preparatory part, the investigation of the circumstances of the case, the conclusion of the prosecutor, the representative of the state body or the representative of the local self-government body, judicial debate, the ruling and announcement of the court decision.

There is a certain procedure for the trial, established by Art. 158 Code of Civil Procedure of the Russian Federation. When the judges enter the courtroom, all those present in the hall stand up. The announcement of the court decision, as well as the announcement of the court ruling, which ends the case without a decision, all those present in the courtroom listen while standing. The participants in the process address the judges with the words "Dear court!", and they give their testimony and explanations while standing. Deviations from this rule may be allowed with the permission of the chairman. For example, due to physical condition, age, etc.

At the time appointed for the trial of the case, the presiding judge opens the court session and announces which civil case is to be considered.

The preparatory part of the court session includes the following provisions. The secretary of the court session checks the attendance of all persons who have appeared, and also announces the reasons for the absence of persons who have been duly notified.

In turn, the presiding judge establishes the identity of the persons participating in the case, checks the powers of officials, as well as the properly executed powers of representatives.

After checking the persons who have appeared in court, the court explains to the persons participating in the case their procedural rights and procedural obligations. In practice, there is such a situation that the procedural rights and obligations are printed on the reverse side of the court notice. It is assumed that, upon receiving a notice, a person must become familiar with his procedural rights and obligations in order not to waste time on this in a court session. However, such actions are not legal. The court must at the beginning of the trial on the case once again explain and determine the range of procedural rights and obligations of the persons participating in the case.

Need to define range of consequences in case of non-appearance of persons participating in the case at the court session (Article 167 of the Code of Civil Procedure of the Russian Federation):

1) if any of the persons participating in the case fails to appear at the court session, in respect of whom there is no information about their notification, the trial of the case is postponed;

2) if the persons participating in the case are notified of the time and place of the court session, the court shall postpone the trial of the case if the reasons for their failure to appear are recognized as valid;

3) the court has the right to consider the case in the event of non-appearance of any of the persons participating in the case and notified of the time and place of the court session, if they do not provide information on the reasons for non-appearance or the court recognizes the reasons for their non-appearance as disrespectful;

4) the court has the right to consider the case in the absence of the defendant, notified of the time and place of the court session, if he did not inform the court about the valid reasons for the absence and did not ask to consider the case in his absence;

5) the parties have the right to ask the court to consider the case in their absence and send them copies of the court decision;

6) the court may postpone the trial of the case at the request of the person participating in the case, due to the absence of his representative for a good reason.

After all the preparatory actions have been taken, the consideration of the case on the merits begins. Then the presiding judge finds out whether the plaintiff supports his claims, whether the defendant recognizes the claims of the plaintiff and whether the parties do not want to end the case by concluding a settlement agreement. If the parties express a desire to conclude a settlement agreement, the court shall issue a ruling on the approval of the settlement agreement and termination of the proceedings. If the parties to these procedural actions have submitted a refusal, then the consideration of the case on the merits continues.

The next part of the court session is characterized by an examination of the circumstances of the case, i.e., explanations of the parties and third parties are heard, witnesses are interrogated (moreover, the witnesses who appear are removed from the courtroom, and the presiding judge takes measures to ensure that the interrogated witnesses do not communicate with underexamined witnesses), written and physical evidence is examined, as well as their examination, audio or video recordings are played and its examination is carried out.

After examining all the evidence, the presiding judge gives the floor for an opinion on the case to the prosecutor, representative of the state body or representative of the local self-government body participating in the process. Finds out from other persons participating in the case, their representatives, whether they wish to make additional explanations. In the absence of such statements, the presiding judge declares the consideration of the case essentially completed, and the court proceeds to judicial debate (Article 189 of the Code of Civil Procedure of the Russian Federation).

In judicial debate, the persons participating in the case express their opinion on the study of evidence, on the completeness of the evidence presented, on the correctness and legality of the trial in the case, etc. It must be remembered that the prosecutor, representatives of state bodies, bodies are the first to participate in the debate. local self-government, organizations and citizens who applied to the court for the protection of the rights and legitimate interests of other persons. If the above persons did not participate in the case, then the plaintiff and his representative are the first to participate in the debate. The right of the last remark always belongs to the defendant, his representative.

The trial of a civil case ends with the removal of the court to the deliberation room for the issuance of a judgment. According to Art. 193 Code of Civil Procedure of the Russian Federation after the adoption and signing of the decision, the court returns to the courtroom, where the presiding judge or one of the judges announces the decision of the court. Then the presiding judge orally explains the content of the court decision, the procedure and term for its appeal. When announcing only the operative part of the court decision, the presiding judge is obliged to explain when the persons participating in the case and their representatives can familiarize themselves with the reasoned court decision.

During the court session, all persons present must observe the proper order and not interfere with persons who are taking photographs and videotapes permitted by the court, broadcasting the court session on radio and television. It should be noted that all actions in the courtroom are carried out only with the permission of the presiding judge.

These actions must be carried out at the places indicated by the court in the courtroom and, taking into account the opinion of the persons participating in the case, may be limited by the court in time. The presiding judge, on behalf of the court, announces a warning to a person who has violated the rules of conduct in the courtroom. In case of repeated violation of the order, the person participating in the case or his representative may be removed from the courtroom on the basis of a court ruling for the entire duration of the court session or part of it.

In the latter case, the presiding judge introduces the newly admitted person to the courtroom with the procedural actions performed in his absence. Citizens present at the court session, for repeated violation of the order, are removed by order of the presiding judge from the courtroom for the entire duration of the court session.

The court also has the right to impose a fine of up to 10 minimum wages on persons guilty of violating order in a court session. If there are signs of a crime in the actions of a person violating order in a court session, the judge sends the relevant materials to the prosecutor for initiating a criminal case against the violator. In the event of a massive violation of order by citizens present at the court session, the court may remove from the courtroom the citizens who are not participants in the process and consider the case in a closed court session or postpone the trial of the case.

3. Suspension of proceedings

The court has the power to temporarily suspend the proceedings. Suspension can take the form of form interruption, postponement and suspension.

As a rule, break announced for the rest of the judges. The reason for a break may also be the occurrence of unforeseen circumstances that can be resolved in a much faster time.

It is not allowed to announce a break before the court leaves for the deliberation room to make a decision. After the announced break, the case continues from the point at which it was stopped. The minutes of the court session shall record the time of the court's departure for a break, as well as the time of the resumption of proceedings on the case.

Deposition - actions of the court to postpone the consideration of the case. The adjournment of the trial of the case is allowed in cases where the court finds it impossible to consider the case at this court session due to the absence of any of the participants in the process (for example, the absence of witnesses, an expert and an interpreter), the presentation of a counterclaim, the need to present or demand additional evidence, involvement in the case of other persons, commission of other procedural actions. If the trial of the case is adjourned, the date of a new court session is set, taking into account the time required to summon the participants in the process or to obtain evidence, which is announced to the persons who appear against receipt.

Persons who did not appear and persons newly involved in the process are notified of the time and place of a new court session. The trial of the case after its adjournment begins from the beginning.

The Code of Civil Procedure of the Russian Federation provides for mandatory cases of suspension of proceedings on a case, as well as the possibility of suspending proceedings on a case at the initiative of the court.

The obligation of the court to suspend the proceedings in the following cases (Article 215 of the Code of Civil Procedure of the Russian Federation):

1) the death of a citizen, if the disputed legal relationship allows succession, or the reorganization of a legal entity, which are parties to the case or third parties with independent claims;

2) the recognition of the party as incapable or the absence of a legal representative of the person recognized as incapacitated;

3) the participation of the respondent in military operations, the performance of tasks in a state of emergency or martial law, as well as in the conditions of military conflicts or the request of the plaintiff, participating in hostilities or in the performance of tasks in a state of emergency or martial law, as well as in conditions of military conflicts;

4) the impossibility of considering this case before the resolution of another case being considered in civil, administrative or criminal proceedings;

5) appeals of the court to the Constitutional Court of the Russian Federation with a request on the conformity of the law to be applied with the Constitution of the Russian Federation.

Suspension of proceedings on a case at the initiative of the court (i.e., optional suspension) or persons participating in the case is possible with (Article 222 of the Code of Civil Procedure of the Russian Federation):

1) the party is in a medical institution;

2) search for the defendant;

3) appointment of an expert examination by the court;

4) appointment by the body of guardianship and guardianship of an examination of the living conditions of adoptive parents in the case of adoption (adoption) and other cases affecting the rights and legitimate interests of children;

5) direction by the court of a court order.

The legislator provides for the terms and circumstances upon the occurrence of which the proceedings in civil cases must be resumed: before the determination of the legal successor of the person participating in the case, or the appointment of a legal representative to an incompetent person; until the elimination of the circumstances that served as the basis for the suspension of the proceedings; until the entry into force of a court decision, court decision, sentence, court ruling or until the adoption of a decision based on the materials of the case considered in administrative proceedings; before the adoption by the Constitutional Court of the Russian Federation of the corresponding resolution.

Suspension of proceedings on the case shall be recorded in the minutes of the court session. After the reasons for the suspension of the proceedings on the case have been eliminated, the court shall notify all the persons participating in the case and set the date, place, and time of the court session. After the resumption of proceedings on the case, the case continues from the point at which it was suspended.

4. Termination of proceedings

In Art. 220 Code of Civil Procedure of the Russian Federation grounds for termination of proceedings:

1) the case is not subject to consideration and resolution in court in civil proceedings;

2) there is a court decision or court ruling that has entered into force and was adopted in a dispute between the same parties, on the same subject and on the same grounds, to terminate the proceedings in connection with the acceptance of the plaintiff's refusal of the claim or the approval of the settlement agreement of the parties;

3) the plaintiff abandoned the claim, and the refusal was accepted by the court;

4) the parties have entered into a settlement agreement, and it has been approved by the court;

5) there is an arbitral tribunal decision, which has become binding on the parties, adopted in a dispute between the same parties, on the same subject and on the same grounds, except in cases where the court has refused to issue a writ of execution for the enforcement of the arbitral tribunal's decision;

6) the death of a citizen who was one of the parties to the case, the disputed legal relationship does not allow succession, or the liquidation of the organization that was one of the parties to the case.

From practice. According to the Ruling of the Constitutional Court of the Russian Federation dated May 12, 2005 No. 244-O, the provisions of paragraph 1 of part 1 of Art. 134 and Art. 220 in conjunction with art. 253 of the Code of Civil Procedure of the Russian Federation suggest that the court cannot terminate proceedings in a case on contesting a normative legal act recognized by a decision of a state authority, a local government body or an official who adopted this normative legal act, as invalid after the filing of an appropriate application with the court, if in during the trial, a violation by the disputed normative legal act of the rights and freedoms of the applicant, guaranteed by the Constitution of the Russian Federation, laws and other normative legal acts, will be established.

Proceedings in the case are terminated by a court ruling, which must indicate that re-applying to the court in a dispute between the same parties, on the same subject and on the same grounds is not allowed (Article 221 of the Code of Civil Procedure of the Russian Federation).

5. Minutes of the court session

Minutes of the court session is one of the most important documents of the court proceedings, since it reflects the entire course of the court session, the statements of the persons participating in the case, applications and consideration of petitions, the moment the court announces adjournment, suspension of the court session, etc. The minutes of the court session are drawn up in in writing by the secretary of the court session when performing any procedural action in the course of the trial. The secretary of the court session may use technical means (audio recording, stenography and other technical means) in order to complete the protocol. At the same time, the secretary of the court session in the protocol must necessarily indicate the use and application of technical means. The carrier of the audio recording must be sealed and attached to the case file. The persons participating in the case, their representatives have the right to petition for the disclosure of any part of the protocol, for the inclusion in the protocol of information about the circumstances that they consider essential for the case. The minutes of the court session must be drawn up and signed no later than 3 days after the end of the court session. The protocol of the court session shall be signed by the presiding judge and the secretary of the court session. All changes, additions, corrections made to the protocol must be specified and certified by the signatures of the presiding judge and the secretary of the court session (Article 230 of the Code of Civil Procedure of the Russian Federation).

The persons participating in the case, their representatives have the right to familiarize themselves with the protocol and, within 5 days from the date of its signing, submit comments on the protocol in writing indicating the inaccuracies and (or) its incompleteness (Article 231 of the Code of Civil Procedure of the Russian Federation).

The minutes of the court session must be of the following content (Article 229 of the Code of Civil Procedure of the Russian Federation):

1) the date and place of the court session;

2) the time of the beginning and end of the court session;

3) the name of the court hearing the case, the composition of the court and the secretary of the court session;

4) title of the case;

5) information about the appearance of the persons participating in the case, their representatives, witnesses, experts, specialists, translators;

6) information about the clarification to the persons participating in the case, their representatives, witnesses, experts, specialists, translators of their procedural rights and obligations;

7) orders of the presiding judge and rulings issued by the court in the courtroom;

8) statements, petitions and explanations of the persons participating in the case, their representatives;

9) testimonies of witnesses, explanations by experts of their conclusions, consultations and explanations of specialists;

10) information about the disclosure of written evidence, data from the examination of physical evidence, listening to audio recordings, viewing video recordings;

11) the content of the conclusions of the prosecutor and representatives of state bodies, local self-government bodies;

12) content of judicial debates;

13) information about the announcement and clarification of the content of the court decision and court rulings, clarification of the procedure and term for their appeal;

14) information on explaining to the persons participating in the case their rights to familiarize themselves with the protocol and submit comments on it;

15) date of drawing up the protocol.

6. Absentee proceedings

Along with order production absentee proceedings is a simplified form of civil proceedings. Previously, the Code of Civil Procedure of the RSFSR did not provide for absentee proceedings. This is explained by the fact that in the Civil Procedure Code of the RSFSR, along with the principle of adversarialism and equality of the parties, there was the principle of objective truth, by virtue of which the court had the right to collect evidence on its own initiative even in the absence of one of the parties in civil proceedings. When making a court decision, the court had to find out all the circumstances relating to the proceedings.

According to the provisions of the Code of Civil Procedure of the Russian Federation, the court does not have such powers, as a result of which, if certain circumstances arise, the court can make a decision in absentia. This proceeding is in absentia only for the defendant who did not appear in court when notified of the time, place and date of the trial. If there is complicity in the proceedings, the court may make a judgment in absentia if all co-defendants are absent. However, the plaintiff may not agree to conduct proceedings in absentia, and then the court hearing is postponed to another day with notice sent to the defendant (defendants) about the next court hearing. If the plaintiff does not object to the case being considered in absentia proceedings, the court issues a ruling to consider the case through absentee proceedings. The court may refuse to conduct proceedings in absentia if the plaintiff wishes to change the price of the claim, the basis of the claim, etc.

When considering a case in absentia proceedings, the court conducts a hearing in the general manner, i.e., examines the evidence presented by the persons participating in the case, takes into account their arguments and makes a decision, which is called in absentia (Article 234 of the Code of Civil Procedure of the Russian Federation). After the end of the trial and after the adoption of a decision in absentia, the court sends the defendant (defendants) a copy of the decision in absentia within 3 days from the date of its adoption with notification of delivery. The plaintiff, who was not present at the court hearing and who asked the court to consider the case in his absence, is also sent a copy of the default decision no later than 3 days after its adoption with notification of delivery.

The defendant has the right to file with the court that made the default decision an application to cancel this court decision within 7 days from the date of delivery of a copy of this decision. A court decision in absentia can also be appealed by the parties in cassation (an absentee decision of a magistrate - in an appeal procedure) within 10 days after the expiration of the deadline for the defendant to file an application to cancel this court decision, and if such an application is filed, within 10 days from the date of the court ruling refusing to satisfy this application. Consequently, a default judgment can be appealed within a total of 17 days.

When the defendant submits an application for the cancellation of a default decision, it must contain (Article 238 of the Code of Civil Procedure of the Russian Federation):

1) the name of the court that issued the decision in absentia;

2) the name of the person submitting the application;

3) circumstances that testify to the validity of the reasons for the defendant's failure to appear at the court session, about which he was not able to inform the court in a timely manner, and evidence confirming these circumstances, as well as circumstances and evidence that may affect the content of the court decision;

4) the request of the person submitting the application;

5) a list of materials attached to the application.

It should also be noted that an application for the annulment of an absentee decision does not require the payment of a state fee.

The court's default judgment is subject to cancellationif the court establishes that the defendant’s failure to appear at the court hearing was caused by valid reasons, which he was not able to inform the court in a timely manner, and the defendant refers to circumstances and presents evidence that may affect the content of the court decision (Article 242 of the Code of Civil Procedure of the Russian Federation ). If the default judgment is canceled, the court resumes consideration of the case on the merits. If the defendant, duly notified of the time and place of the court hearing, fails to appear, the court decision adopted during the new consideration of the case will not be in absentia. The defendant does not have the right to re-submit an application for review of this decision in absentia proceedings (Article 243 of the Code of Civil Procedure of the Russian Federation). After the expiration of all appeal periods, the absentee decision enters into legal force.

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.

Lecture No. 11

1. Cases arising from public relations

According to Art. 245 of the Code of Civil Procedure of the Russian Federation, the court considers the following categories of cases arising from public relations:

1) on applications from citizens, organizations, the prosecutor on contesting normative legal acts in whole or in part, unless the consideration of these applications is referred by federal law to the competence of other courts;

2) on applications to challenge decisions and actions (inaction) of state authorities, local governments, officials, state and municipal employees;

3) on applications for the protection of electoral rights or the right to participate in a referendum of citizens of the Russian Federation;

4) other cases arising from public legal relations and referred by federal law to the jurisdiction of the court.

Cases arising from public legal relations are considered by a single judge, unless otherwise provided by federal law. Proceedings on these categories of cases are carried out according to the rules provided for the action proceedings. When considering and resolving cases arising from public legal relations, the rule of absentee decision is not applied, which is due to the distribution of the burden of proof and the status of the parties.

The parties in cases arising from public legal relations are the applicant and the person concerned.

by the applicant a person whose right has been violated or disputed by means of the issuance of a normative act, decision, actions or inaction of an official, state and municipal employees of state authorities, local governments is recognized.

Interested party a person who is brought by the court as a so-called defendant is recognized.

Interested party are an official, state or municipal employee of state authorities, local governments, who adopted a normative act, decision, committed an action or inaction, which violated the applicant's right. When considering and resolving cases arising from public legal relations, the court is not bound by the grounds and arguments of the stated requirements. When considering and resolving cases arising from public legal relations, the court may recognize as obligatory the presence at the court session of a representative of a state authority, a local self-government body or an official. In case of non-appearance, these persons may be subject to a fine of up to 10 minimum wages (Article 247 of the Code of Civil Procedure of the Russian Federation).

The basis for considering a case arising from public legal relations is the applicant's statement, which is subject to the requirements provided for a statement of claim (Articles 131, 132 of the Code of Civil Procedure of the Russian Federation). The application must also indicate which decisions, actions (inaction) should be recognized as illegal, what rights and freedoms of a person are violated by these decisions, actions (inaction).

It should be noted that non-compliance with the pre-trial procedure for resolving the dispute between the parties may be the basis for refusing to accept the statement of claim. In cases arising from public relations, the applicant does not need to apply to a higher authority or official, and it is not a prerequisite for filing an application with the court.

A feature of proceedings in cases arising from public legal relations is the absence of a dispute about the law. If, when filing an application with the court, it is established that there is a dispute about the right, the judge leaves the application without movement and explains to the applicant the need to draw up a statement of claim in compliance with the requirements of Art. 131 and 132 Code of Civil Procedure of the Russian Federation. The basis for refusing to accept an application (and if the application was accepted, then for terminating proceedings in a case arising from public legal relations) is a court decision made on an application on the same subject and which has entered into force (Article 249 of the Code of Civil Procedure of the Russian Federation).

The obligation to prove the circumstances that served as the basis for the adoption of a normative legal act, its legality, as well as the legality of the disputed decisions, actions (inaction) of state authorities, local governments, officials, state and municipal employees is assigned to the body that adopted the normative legal act, bodies and persons who have taken the contested decisions or committed the contested actions (omissions). When considering and resolving cases arising from public legal relations, the court may demand evidence on its own initiative in order to correctly resolve the case. Officials who fail to comply with the requirements of the court to present evidence are subject to a fine of up to 10 minimum wages.

A court decision rendered in cases arising from public legal relations enters into force after the expiration of the period for appeal (10 days). However, there is one peculiarity in the entry into force of a court decision. One of the properties of a court decision that has entered into legal force is obligation - acts differently. As a rule, a court decision that has entered into legal force becomes binding on the circle of persons participating in the proceedings on cases arising from public legal relations. A court decision, after it comes into force, becomes mandatory for the category of citizens who are subject to a normative act, decision of an official, state or municipal employee of state authorities, local self-government.

2. Proceedings on cases of invalidation of normative legal acts in whole or in part

The basis for initiating proceedings on cases of invalidating normative acts in whole or in part is an application.

The following have the right to file an application (Article 251 of the Code of Civil Procedure of the Russian Federation):

1) a citizen, an organization that considers that the normative legal act of a state authority, local government body or official, adopted and published in the prescribed manner, violates their rights and freedoms guaranteed by the Constitution of the Russian Federation, laws and other regulatory legal acts;

2) the prosecutor, within the limits of his competence, with a statement on the recognition of a normative act as contrary to the law in part or in full;

3) President of the Russian Federation;

4) Government of the Russian Federation;

5) legislative (representative) body of a subject of the Russian Federation;

6) the highest official of a constituent entity of the Russian Federation;

7) body of local self-government;

8) the head of the municipality, who believes that the normative act adopted and published in the prescribed manner violated their competence.

Not subject to court review in the manner prescribed by this chapter, applications for contesting normative legal acts, the verification of the constitutionality of which is assigned to the exclusive competence of the Constitutional Court of the Russian Federation in accordance with the Federal Law "On the Constitutional Court of the Russian Federation". According to the Federal Law "On the Constitutional Court of the Russian Federation" The Constitutional Court of the Russian Federation allows:

1) cases on compliance with the Constitution of the Russian Federation:

a) federal laws, regulations of the President of the Russian Federation, the Federation Council, the State Duma, the Government of the Russian Federation;

b) the constitutions of the republics, charters, as well as laws and other normative acts of the constituent entities of the Russian Federation, issued on issues related to the jurisdiction of the state authorities of the Russian Federation and the joint jurisdiction of the state authorities of the Russian Federation and the state authorities of the constituent entities of the Russian Federation;

c) agreements between public authorities of the Russian Federation and public authorities of the constituent entities of the Russian Federation, agreements between public authorities of the constituent entities of the Russian Federation;

d) international treaties of the Russian Federation that have not entered into force;

2) disputes about competence:

a) between federal government bodies;

b) between state authorities of the Russian Federation and state authorities of subjects of the Russian Federation;

c) between the highest state bodies of the constituent entities of the Russian Federation, as well as on complaints of violation of the constitutional rights and freedoms of citizens and at the request of the courts, checks the constitutionality of the law applied or to be applied in a particular case, gives an interpretation of the Constitution of the Russian Federation, gives an opinion on compliance with the established procedure for bringing charges against the President Russian Federation in high treason or the commission of another serious crime and other categories of cases.

A copy of the disputed normative act or part thereof shall be attached to the application for contesting a normative act, indicating by which mass media and when this act was published. Submitting an application to contest a normative act does not suspend the operation of the normative act that is being challenged.

An application for contesting a normative legal act is considered within 1 month from the date of its submission with the participation of the persons who applied to the court with an application, a representative of the state authority, local self-government body or an official who adopted the contested normative legal act, and the prosecutor.

Depending on the circumstances of the case, the court may consider the application in the absence of any of the interested persons who have been notified of the time and place of the court session. Refusal of the person, who applied to the court, from his demand does not entail the termination of proceedings on the case.

Recognition of a claim by a public authority, local government or an official who has adopted the disputed normative legal act is not mandatory for the court (Article 252 of the Code of Civil Procedure of the Russian Federation).

A court decision on recognizing a normative legal act or part thereof as invalid shall enter into force and entail the loss of force of this normative legal act or part thereof, as well as other normative legal acts based on the normative legal act recognized as invalid or reproducing its content. Such a court decision or a notice of the decision after its entry into force shall be published in the printed publication in which the normative legal act was officially published. In the event that this printed publication has ceased its activities, such a decision or message is published in another printed publication, in which regulatory legal acts of the relevant state authority, local government body or official are published (Article 253 of the Code of Civil Procedure of the Russian Federation).

3. Proceedings on cases of contesting decisions, actions (inaction) of state authorities, local governments, officials, state and municipal employees

A citizen, an organization has the right to challenge in court a decision, action (inaction) of a state authority, local government, official, state or municipal employee if they believe that their rights and freedoms have been violated (part 1 of article 254 of the Code of Civil Procedure of the Russian Federation).

Legal entities also have the right to appeal to the court decisions and actions (or inaction) of state authorities, local self-government, public associations and officials.

In practice, many law enforcement officers who have access to classified information, state secrets, go to court for permission to travel outside the Russian Federation. This is how conflict situations arise on the ground. The Code of Civil Procedure of the Russian Federation provides for a rule that states that this application must be left without satisfaction.

The Civil Procedure Code of the Russian Federation defines the categories of decisions, actions (inaction) of state authorities, local governments, officials, state or municipal employees that can be appealed in civil proceedings (Article 255 of the Code of Civil Procedure of the Russian Federation). Such decisions, actions (inaction) include collective and sole decisions and actions (inaction), as a result of which:

1) the rights and freedoms of a citizen are violated;

2) obstacles have been created to the exercise by a citizen of his rights and freedoms;

3) any duty is unlawfully imposed on the citizen, or he is unlawfully held accountable.

In civil procedural law, there are statute of limitations, and, as a rule, they are regulated by the provisions of the Civil Code of the Russian Federation.

The general statute of limitations is 3 years. Civil Code of the Russian Federation in Art. 208 provides for claims for which a general statute of limitations is not established at all or within a different time frame. In Part 1 of Art. 197 of the Civil Code of the Russian Federation provides that for certain types of claims the law may establish special limitation periods, shorter or longer than the general limitation period.

To apply to the court with an application to initiate proceedings in cases of challenging decisions, actions (inaction) of state authorities, local governments, officials, state and municipal employees, the Code of Civil Procedure of the Russian Federation establishes special limitation periods. Part 1 Art. 256 of the Code of Civil Procedure of the Russian Federation indicates that a citizen has the right to apply to the court with a statement within 3 months from the date when he became aware of the violation of his rights and freedoms. At the same time, he must prove in court that this decision, action (inaction) was not known to him before. However, missing the three-month deadline for applying to the court is not grounds for refusing to accept the application. The reasons for missing the deadline are clarified in the preliminary court session or court session and may be grounds for refusing to satisfy the application.

The Civil Procedure Code of the Russian Federation also establishes special terms for the consideration and resolution of cases on contesting decisions, actions (inaction), which are 5 days. Within 5 days, the court, with the participation of a citizen, head or representative of a public authority, local government, official, state or municipal employee, considers the application on the merits and makes a decision.

If the court recognizes the statement of a citizen or legal entity as justified, then it makes a decision by which it obliges the relevant body or person to eliminate in full the violation of the rights and freedoms of a citizen, legal entity or an obstacle to the exercise of rights and freedoms. Within 3 days from the date of entry into force of the court decision, the court sends its decision for execution, which must be executed within 3 months with a notice of the execution of the court decision of the court, citizen, legal entity, whose right has been violated or obstacles have been created for the implementation of their rights and freedoms.

4. Proceedings on cases of protection of electoral rights and the right to participate in a referendum of citizens of the Russian Federation

The right to apply to the court with an application in cases of protection of electoral rights and the right to participate in a referendum of citizens of the Russian Federation have:

1) voters;

2) referendum participants;

3) candidates and their proxies;

4) electoral associations and their proxies;

5) political parties and their regional associations;

6) other public associations;

7) referendum initiative groups and their authorized representatives;

8) other groups of referendum participants and their authorized representatives;

9) observers;

10) prosecutor;

11) the Central Election Commission of the Russian Federation;

12) election commissions of subjects of the Russian Federation;

13) election commissions of municipalities;

14) district, territorial, precinct election commissions;

15) relevant referendum committees.

All participants in proceedings on cases of protection of electoral rights and the right to participate in a referendum of citizens of the Russian Federation can be divided according to the legal interest, about which the participants apply to the court. Participants in this type of proceedings, from the voter to the prosecutor, apply to the court with a statement if they believe that the decisions or actions (inaction) of a state authority, local self-government body, public associations, an election commission, a referendum commission, an official violate electoral rights or the right to participate in a referendum of citizens of the Russian Federation. Participants, starting from the central commission and ending with referendum commissions, apply to the court with a statement if they believe that there is a violation of the legislation on elections and referendums by a state authority, local government, officials, a candidate, an electoral association, a political party, its regional branch , another public association, a referendum initiative group, another group of referendum participants, as well as an election commission, a referendum commission, a member of an election commission, a referendum commission.

According to Art. 2 of the Federal Law of June 12, 2002 No. 67-FZ "On Basic Guarantees of Electoral Rights and the Right to Participate in a Referendum of Citizens of the Russian Federation", a voter is a citizen of the Russian Federation who has an active right to vote.

In constitutional law, there is a distinction active and passive suffrage. The citizen who elects has the active right, the citizen who is elected has the passive right. An active electoral right is held by a citizen whose place of residence is located within the electoral district. The stay of a citizen of the Russian Federation outside his place of residence during elections in the district in which this place of residence is located cannot serve as a basis for depriving him of the right to participate in elections to state authorities of the corresponding subject of the Russian Federation, local self-government bodies. Active suffrage may be granted by law to a citizen whose place of residence is located outside the electoral district.

A citizen of the Russian Federation who has reached the age of 18 has the right to elect, vote in a referendum, and upon reaching the age established by the Constitution of the Russian Federation, federal laws, constitutions (charters), laws of the constituent entities of the Russian Federation - to be elected to state authorities and local self-government bodies. A citizen of the Russian Federation who reaches the age of 18 on voting day has the right to participate in other electoral actions provided for by law and carried out by legal methods, other actions for the preparation and holding of a referendum. A citizen of the Russian Federation has the right to elect, be elected, participate in a referendum, regardless of gender, race, nationality, language, origin, property and official status, place of residence, attitude to religion, beliefs, membership in public associations, as well as other circumstances.

Citizens who have been declared legally incompetent by a court or are held in places of deprivation of liberty by a court verdict (Article 4 of the Federal Law "On Basic Guarantees of Electoral Rights and the Right to Participate in a Referendum of Citizens of the Russian Federation") do not have the right to elect, be elected, or participate in a referendum.

In connection with the legal nature of electoral rights and the right to participate in a referendum of a citizen of the Russian Federation, the Code of Civil Procedure of the Russian Federation establishes terms of application and consideration of applications (Art. 260 Code of Civil Procedure of the Russian Federation):

1) an application to the court may be filed within 3 months from the day when the applicant became aware or should have become aware of the violation of the legislation on elections and referendums, his electoral rights or the right to participate in a referendum;

2) an application regarding a decision of an election commission, a referendum commission on registration, on refusal to register a candidate (list of candidates), an initiative group for holding a referendum, another group of referendum participants, may be filed with a court within 10 days from the date of acceptance by the election commission, the referendum commission of the contested decision;

3) an application to cancel the registration of a candidate (list of candidates) may be filed with the court no later than 8 days before voting day;

4) after the publication of the results of an election, a referendum, an application for violation of the electoral rights or the right to participate in a referendum of citizens of the Russian Federation that took place during the election campaign, a referendum campaign, may be filed with a court within 1 year from the date of the official publication of the results of the relevant elections, referendum .

During the period of an election campaign, a referendum campaign, an application received by the court before voting day must be considered and resolved within 5 days from the date of its receipt, but no later than the day preceding voting day, and an application received on the day preceding voting day, on the voting day or on the day following the voting day - immediately. If the facts contained in the application require additional verification, the application must be considered and resolved no later than 10 days from the date of its submission.

An application for incorrectness in the lists of voters, referendum participants must be considered and resolved within 3 days from the date of its receipt by the court, but no later than the day preceding voting day, and immediately on voting day. An application concerning a decision of an election commission, a referendum commission on the results of voting, on the results of elections, a referendum, must be considered and resolved within 2 months from the date of its receipt by the court. A decision on an application to cancel the registration of a candidate (list of candidates) is made by the court no later than 5 days before voting day. A decision on an application to cancel the registration of an initiative group for holding a referendum, another group of referendum participants shall be taken by the court no later than 3 days before voting day. A decision on an application for the dissolution of an election commission, referendum commission shall be made by the court no later than 14 days, and in the course of an election campaign, a referendum campaign - no later than 3 days from the day the application was received by the court.

In the process of considering and resolving a case on the merits, the following cannot be applied as measures to secure a claim:

1) seizure of ballots, referendum ballots, lists of voters, referendum participants, other electoral documents, referendum documents or their seizure;

2) prohibition for election commissions, referendum commissions to carry out actions established by law for the preparation and conduct of elections, a referendum.

With regard to appealing court decisions made in these categories of cases, a cassation appeal against a court decision or a private complaint against a court ruling can be filed within 5 days from the date the court decision or ruling was made (Article 261 of the Code of Civil Procedure of the Russian Federation).

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).

Lecture No. 13

1. Proceedings in the court of appeal

Can be appealed on appeal only rulings and court decisions of magistrates that have not entered into legal force. This is how appellate proceedings differ from cassation proceedings (in cassation proceedings, rulings, decisions and court decisions of courts of general jurisdiction that have not entered into legal force can be reviewed). The basis for initiating appeal proceedings is an appeal. The parties and other persons participating in the case have the right to file an appeal. The prosecutor participating in the case may file an appeal against the decision of the magistrate. It must be taken into account that the complaint or presentation is submitted to the relevant district court through the magistrate, who considered and resolved the case on the merits. The general period for filing an appeal or presentation is 10 days from the date of the court’s final decision.

The appeal and presentation must be of the following content (Article 322 of the Code of Civil Procedure of the Russian Federation):

1) the name of the district court to which the complaint or presentation is addressed;

2) the name of the person filing the complaint, presentation, his place of residence or location;

3) an indication of the appealed decision of the justice of the peace;

4) arguments of the complaint, presentation;

5) request of the person concerned;

6) a list of documents attached to the complaint, submission.

If the appeal is filed by a representative, then a power of attorney (or other document) certifying the powers of the representative must be attached to the complaint, if there is no such power in the case. The appeal must be submitted with copies of the submitted documents, the number of which must correspond to the number of persons participating in the case. The appeal is paid by the state fee in the amount of 50%, i.e. 50 rubles.

Upon receipt of an appeal or presentation, the court may make the following decision:

1) to leave without movement, if the appeal, presentation do not meet the requirements stipulated by the Code of Civil Procedure of the Russian Federation. At the same time, the court issues a ruling, on the basis of which it leaves the complaint, presentation, and indicates the period during which the shortcomings must be corrected (a fee must be paid, a power of attorney or other document must be submitted, etc.). When filing an appeal, the prosecutor does not pay the state fee;

2) return the appeal or presentation. The court may make such a decision on the following grounds:

a) the instructions of the justice of the peace contained in the court ruling on leaving the complaint or presentation without movement have not been fulfilled within the established period;

b) the period for appeal has expired, if the complaint or presentation does not contain a request for the restoration of the period or its restoration is refused;

c) the request of the person who filed the appeal, presentation, if the case was not sent to the district court.

When the appeal or presentation is returned, the court shall issue a ruling specifying the grounds for returning the complaint or presentation. The person who filed the appeal, the prosecutor who brought the presentation, have the right to appeal against the court ruling in the generally established procedure provided for by the Code of Civil Procedure of the Russian Federation. The justice of the peace after receiving the appeal, presentation is obliged to send to the persons participating in the case, copies of the complaint, presentation and documents attached to them. The persons participating in the case have the right to submit objections to the justice of the peace in writing regarding the appeal, presentation with the attachment of documents confirming these objections, and their copies, the number of which corresponds to the number of persons participating in the case, and have the right to familiarize themselves with the case materials, with the received complaints, representations and objections to them. After the expiration of the period for appeal, the justice of the peace sends the case with the appeal, the presentation and the objections received regarding them to the district court. Before the expiration of the appeal period, the case cannot be sent to the district court (Article 325 of the Code of Civil Procedure of the Russian Federation).

A feature of the appeal proceedings is that all civil proceedings begin from the very beginning, i.e. the court has the right to establish new facts, as well as to examine new evidence. Consideration and resolution of the case on the merits in the appellate instance take place according to the rules of proceedings in the court of first instance.

When considering the resolution of a case in a court of appeal, the court is competent (Article 328 of the Code of Civil Procedure of the Russian Federation):

1) to leave the decision of the justice of the peace unchanged, the complaint, presentation - without satisfaction;

2) change the decision of the justice of the peace or cancel it and adopt a new decision;

3) cancel the decision of the justice of the peace in whole or in part and terminate the court proceedings or leave the application without consideration.

The moment of entry into force of the decision of the court of appeal is the day of the issuance of the judgment.

The grounds for canceling or changing the judgment of the justice of the peace are (Article 330 of the Code of Civil Procedure of the Russian Federation):

1) incorrect determination of circumstances relevant to the case;

2) failure to prove circumstances established by the court of first instance that are relevant to the case;

3) discrepancy between the conclusions of the court of first instance, set out in the court decision, and the circumstances of the case;

4) violation or incorrect application of the norms of substantive law or norms of procedural law.

Violation or incorrect application of the norms of substantive law is observed if (Article 363 of the Code of Civil Procedure of the Russian Federation):

1) the court did not apply the applicable law;

2) the court has applied a law that is not subject to application;

3) the court misinterpreted the law.

Violation or incorrect application of the norms of procedural law is the basis for the cancellation of the decision of the court of first instance only if this violation or incorrect application has led or could have led to an incorrect resolution of the case (Article 364 of the Code of Civil Procedure of the Russian Federation).

A private court ruling may also be appealed on appeal, against which a private complaint or a prosecutor's presentation may be filed within 10 days from the date the ruling was issued by a justice of the peace.

The court of appeal, having considered a private complaint, a presentation by a prosecutor, has the right (Article 334 of the Code of Civil Procedure of the Russian Federation):

1) to leave the ruling of the justice of the peace unchanged, and the complaint or presentation - without satisfaction;

2) cancel the ruling of the justice of the peace in whole or in part and resolve the issue on the merits.

2. Proceedings in the court of cassation

Court decisions of courts of general jurisdiction that have not entered into legal force are appealed through the cassation procedure.. The parties, persons participating in the case, as well as the prosecutor participating in the case have the right to file a cassation appeal or presentation. The deadline for filing a cassation appeal or presentation is 10 days from the date of the court’s final decision.

Decisions of the court of first instance that have not entered into legal force can be appealed in cassation (Article 337 of the Code of Civil Procedure of the Russian Federation):

1) decisions of district courts, decisions of garrison military courts - respectively to the supreme court of the republic, the regional court, the court of the city of federal significance, the court of the autonomous region, the court of the autonomous district, the district (naval) military court;

2) decisions of the supreme courts of republics, territorial, regional courts, courts of cities of federal significance, courts of an autonomous region, courts of autonomous districts, district (naval) military courts - to the Supreme Court of the Russian Federation;

3) decisions of the Judicial Collegium for Civil Cases and the Military Collegium of the Supreme Court of the Russian Federation - to the Cassation Collegium of the Supreme Court of the Russian Federation.

As well as in the appellate proceedings, the cassation complaint, presentation are filed with the court, which made the judgment on the case. However, when appealing against a court decision in cassation, new evidence cannot be presented. The only exception is the evidence that could not be submitted to the court of first instance. The fact of the impossibility of presenting evidence earlier will have to be proved by the party that presented them.

The content of the cassation complaint, presentation should be as follows (Article 339 of the Code of Civil Procedure of the Russian Federation):

1) the name of the court to which the complaint or presentation is addressed;

2) the name of the person filing the complaint or presentation, his place of residence or location;

3) an indication of the court decision that is being appealed;

4) the demands of the person filing the complaint, or the demands of the prosecutor making the presentation, as well as the grounds on which they consider the decision of the court to be incorrect;

5) a list of evidence attached to the complaint, presentation.

When considering a cassation appeal, presentation the court may make the following ruling:

1) to leave the cassation complaint, presentation without motion, if the complaint, presentation does not meet the requirements of the Code of Civil Procedure of the Russian Federation. In this case, the court determines the period during which the deficiencies must be corrected. If the person who filed the cassation appeal or presentation within the established time period complies with the instructions contained in the court ruling, the complaint or presentation is considered filed on the day of the initial receipt by the court (part 2 of article 341 of the Code of Civil Procedure of the Russian Federation);

2) return the cassation appeal or presentation, if the judge’s instructions contained in the ruling to leave the complaint or presentation without progress have not been fulfilled within the established period, the period for appeal has expired, unless the complaint, presentation contains a request to restore the period or its restoration is refused.

The cassation complaint is also returned at the request of the person who filed the complaint, the cassation presentation, if it is withdrawn by the prosecutor, if the case is not sent to the court of the cassation instance.

After receiving a cassation appeal or presentation, the judge is obliged (Article 343 of the Code of Civil Procedure of the Russian Federation):

1) not later than the next day after the day of their receipt, send to the persons participating in the case copies of the complaint, presentation and written evidence attached to them;

2) notify the persons participating in the case of the time and place of consideration of the complaint, presentation in cassation in the supreme court of the republic, the regional court, the court of the city of federal significance, the court of the autonomous region, the court of the autonomous district, the district (naval) military court;

3) after the expiration of the period established for the cassation appeal, send the case to the court of the cassation instance.

Until the expiration of the period established for the cassation appeal, no one can demand the case from the court. The persons participating in the case have the right to get acquainted in court with the materials of the case, received cassation complaints, presentations and objections regarding the complaint, presentation.

The court of cassation reviews the decision of the court of first instance on legitimacy and validity, based on the requirements presented by persons in the cassation appeal, presentation. At the same time, the court has the right to evaluate all the evidence available in the case, together with those that were presented when filing a cassation appeal, presentation, provided that the court affirmed that the presentation of this evidence in court was impossible. The court has the right to review the decision rendered by the court of first instance in its entirety, if this is necessary in the interests of legality.

The Civil Procedure Code of the Russian Federation establishes the terms within which cases must be considered in the cassation instance (Article 348 of the Code of Civil Procedure of the Russian Federation):

1) the supreme court of the republic, the regional court, the court of the city of federal significance, the court of the autonomous region, the court of the autonomous district, the district (naval) military court must consider the case received on the basis of a cassation complaint, presentation no later than within a month from the date of its receipt;

2) The Supreme Court of the Russian Federation must consider the case received on the basis of a cassation complaint or presentation within 2 months from the date of its receipt;

3) a cassation appeal, a presentation in a case on the protection of electoral rights and the right to participate in a referendum of citizens of the Russian Federation, received for consideration by the court of cassation during the election campaign, referendum campaign before voting day, are considered by the court within 5 days from the date of their receipt;

4) cassation appeals, submissions against a decision on a case on refusal to register a candidate (list of candidates), on cancellation of registration of a candidate (list of candidates), received by the court of cassation during the election campaign, referendum campaign before voting day, are considered by the court no later than the day voting.

The conduct of the trial is carried out according to the general rules provided for the courts of first instance. The presiding judge opens the court session and announces which case is being considered, on whose cassation appeals, checks the persons present, and also checks the authority of the representative and the documents certifying his authority. After that, the presiding judge announces the composition of the court, which will consider the civil case. Cases in the cassation instance are considered by a court composed of three professional judges, one of which is the presiding judge. The persons participating in the case are explained the right to challenge the judge.

The court cannot consider the case if there are the following grounds (Article 16 of the Code of Civil Procedure of the Russian Federation):

1) during the previous consideration of this case, the judge participated in it as a prosecutor, secretary of the court session, representative, witness, expert, specialist, translator;

2) the judge is a relative or relative of any of the persons participating in the case, or their representatives;

3) the judge is personally, directly or indirectly interested in the outcome of the case, or there are other circumstances that cast doubt on his objectivity and impartiality.

The court may not include persons who are related to each other.

After the removal of the judge, the persons participating in the case have the right to file petitions on all issues related to the consideration of the case in the court of cassation, which are resolved directly at the court session. Consideration of the case in the court of cassation begins with the report of the judge. The speaker sets out the circumstances of the case, the content of the decision of the court of first instance, the arguments of the cassation appeal, presentation and objections received regarding them, the content of the new evidence presented to the court, and also reports other data that need to be considered by the court to verify the court decision (Article 356 of the Code of Civil Procedure of the Russian Federation) . The first person in the court of cassation is the person who filed the cassation appeal, or his representative. If the prosecutor brought a cassation presentation, then the prosecutor shall act first in the court session. In the event that there is an appeal of the court decision by both parties, then the plaintiff acts first in the trial. The court examines the evidence presented by the parties, if the court finds that it was impossible to present them in the court of first instance. And also evidence can be examined, the examination of which was denied in the court of first instance. In the event that new evidence is examined in the court of cassation, judicial debates are held according to the rules provided for by the Code of Civil Procedure of the Russian Federation. At the end of the judicial debate, the court retires to the deliberation room to make a judgment.

The court of cassation, when considering a cassation complaint, presentation, has the right (Article 361 of the Code of Civil Procedure of the Russian Federation):

1) to leave the decision of the court of first instance unchanged, and the cassation appeal, presentation - without satisfaction;

2) cancel the decision of the court of first instance in whole or in part and send the case for a new trial to the court of first instance in the same or another composition of judges, if the violations committed by the court of first instance cannot be corrected by the court of cassation;

3) to change or cancel the decision of the court of first instance and adopt a new decision without submitting the case for a new trial, if the circumstances relevant to the case are established on the basis of the available and additionally submitted evidence;

4) cancel the decision of the court of first instance in whole or in part and terminate the proceedings on the case or leave the application without consideration.

The grounds for canceling and changing a judgment in cassation are the same as for the appellate instance. At the end of the proceedings in a civil case in a court of cassation, the court shall issue cassation ruling, which must contain the following provisions (Article 366 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;

3) the person who filed the cassation complaint, presentation;

4) a summary of the appealed decision of the court of first instance, cassation complaint, presentation, evidence presented, explanations of persons participating in the consideration of the case in the court of cassation;

5) conclusions of the court based on the results of consideration of the cassation complaint, presentation;

6) the motives on which the court came to its conclusions, and a reference to the laws by which the court was guided.

The cassation ruling shall enter into force from the moment of its issuance.

Lecture number 14. Review of court decisions that have entered into legal force in a court of supervisory authority

Under supervision, reviewed court decisions of both the appellate and cassation instances that have entered into force. After the appellate decision or cassation ruling enters into legal force, it may be appealed in the supervisory procedure within 1 year. Persons participating in the case, as well as persons who did not participate in the case, but consider that their rights and legitimate interests have been violated by a court decision, have the right to file a complaint or presentation. Supervisory proceedings differ from cassation and appeal proceedings in that a complaint can be brought to court not only by the persons participating in the case, which is of great importance. In Art. 377 of the Code of Civil Procedure of the Russian Federation establishes the rule for filing a supervisory appeal or presentation by the prosecutor, or rather, against the decision of which court and to which court a complaint can be filed subject to jurisdiction.

A supervisory complaint or a prosecutor's presentation must contain (Article 378 of the Code of Civil Procedure of the Russian Federation):

1) the name of the court to which they are addressed;

2) the name of the person filing the complaint or presentation, his place of residence or location and procedural status in the case;

3) names of other persons participating in the case, their place of residence or location;

4) an indication of the courts that considered the case at the first, appellate, cassation or supervisory instances, and the content of their decisions;

5) an indication of the decision, ruling of the court and the decision of the presidium of the court of the supervisory instance, which are being appealed;

6) an indication of what constitutes a significant violation of the law committed by the courts;

7) the request of the person filing the complaint or presentation.

The supervisory appeal of a person who did not take part in the case must indicate what rights or legitimate interests of this person have been violated by a court decision that has entered into legal force. If a supervisory complaint or a prosecutor's presentation was previously filed with a supervisory authority, they must indicate the decision of the court. The supervisory complaint must be signed by the person filing the complaint or his representative. The complaint filed by the representative shall be accompanied by a power of attorney or other document certifying the authority of the representative. The prosecutor's presentation must be signed by the prosecutor.

When filing a supervisory appeal or presentation, the court must accept the appeal for proceedings. The court does not have the right to leave the complaint or presentation without movement, to refuse to accept the complaint or presentation.

The court has the right only to return a supervisory complaint or a prosecutor's presentation without consideration on the merits, if (Article 380 of the Code of Civil Procedure of the Russian Federation):

1) the complaint or presentation does not meet the requirements provided for by the Code of Civil Procedure of the Russian Federation;

2) the complaint or presentation has been filed by a person who does not have the right to appeal to a court of supervisory authority;

3) the term for appealing against the court decision by way of supervisory review has been missed and the court ruling that has entered into legal force on the restoration of this term has not been attached to the complaint;

4) prior to the acceptance of the complaint or presentation for consideration on the merits, a request was received for their return or withdrawal;

5) the complaint or presentation was filed in violation of the rules of jurisdiction.

In the court of the supervisory instance, the case is considered and resolved on the merits within 1 month, with the exception of the Supreme Court of the Russian Federation. The case must be considered by the Supreme Court of the Russian Federation within 2 months. After considering the supervisory complaint or the presentation of the prosecutor, the court decides to recover the case if there are doubts about the legality of the court decision, or to refuse to recover the case if the arguments set forth in the complaint or presentation cannot lead to the possibility of canceling the court decision. The basis for the revision (i.e., cancellation or amendment) of court decisions in the supervisory instance is the presence of significant violations of the norms of substantive or procedural law. After accepting a supervisory appeal or a prosecutor's presentation, the court issues a ruling on the appointment of a trial, notifying the persons of the place and time of its holding. During the trial, the rapporteur judge sets out the circumstances of the case, the content of the court decisions adopted in the case, the motives for the supervisory appeal or the prosecutor’s presentation, and the ruling on initiating supervisory proceedings.

The court, having considered the case by way of supervision, has the right (Article 390 of the Code of Civil Procedure of the Russian Federation):

1) to leave the judicial decision of the court of the first, second or supervisory instance unchanged, the supervisory complaint or the prosecutor's proposal for a supervisory review of the case - without satisfaction;

2) cancel the court decision of the court of the first, second or supervisory instance in full or in part and send the case for a new trial;

3) cancel the court decision of the court of the first, second or supervisory instance in full or in part and leave the application without consideration or terminate the proceedings on the case;

4) to leave in force one of the court rulings adopted in the case;

5) cancel or change the judicial decision of the court of the first, second or supervisory instance and adopt a new judicial decision, without submitting the case for a new consideration, if an error has been made in the application and interpretation of substantive law;

6) to leave the supervisory complaint or the presentation of the prosecutor without consideration, if there are grounds for that.

Lecture No. 15

1. Grounds for reviewing an act that has entered into legal force due to newly discovered circumstances

The subject of judicial activity when reviewing a court decision on newly discovered grounds are unenforceable judgments. Any decisions, rulings, ordinances may be reviewed due to newly discovered circumstances, if these circumstances at the time of the resolution of the case were not known to either the persons participating in the case or the court.

grounds for the revision of the decision, ruling of the court, decision of the presidium of the court of the supervisory instance, which have entered into force, due to newly discovered circumstances, are:

1) significant circumstances for the case, which were not and could not be known to the applicant;

2) knowingly false testimonies of a witness, a knowingly false conclusion of an expert, a knowingly incorrect translation, falsification of evidence that entailed the adoption of an illegal or unjustified decision, court ruling, decision of the presidium of a court of a supervisory instance and established by a court verdict that has entered into legal force;

3) crimes of the parties, other persons participating in the case, their representatives, crimes of judges committed during the consideration and resolution of this case and established by a court verdict that has entered into legal force;

4) annulment of the decision, sentence, ruling of the court or ruling of the presidium of the court of the supervisory instance or ruling of the state body or local self-government body, which served as the basis for the decision, ruling of the court or ruling of the presidium of the court of the supervisory instance.

Significant circumstances for the case will be those circumstances that can affect the outcome of the case, i.e. these circumstances, to one degree or another, should change, terminate or contribute to the emergence of a substantive or procedural right of the person who filed the application. Thus, those circumstances that arose after the issuance of a court decision cannot be considered as newly discovered circumstances, even if they entail the emergence, change or termination of a substantive or procedural right.

Newly discovered circumstances are circumstances that existed at the time of the issuance of the court decision, but the persons participating in the case or the court did not know about them and could not know. In addition to the existence of newly discovered circumstances, in order to go to court, it is necessary to have a court ruling that has entered into legal force that such circumstances exist.

2. The procedure for applying to the court with an application for review of a judicial act due to newly discovered circumstances

The parties, the prosecutor, other persons participating in the case have the right to file an application, a presentation on the revision of a decision, court ruling, decision of the presidium of a court of supervisory instance due to newly discovered circumstances. Such applications are filed with the court that issued the decision, ruling or ruling. Such an application, presentation may be submitted within 3 months from the date of establishing the grounds for revision (Article 394 of the Code of Civil Procedure of the Russian Federation). The term for filing an application, submission for review due to newly discovered circumstances is procedural, therefore, in the manner prescribed by procedural legislation, it can be restored. For this type of proceedings, the deadlines for filing an application for revision due to newly discovered circumstances are established in view of the existing grounds for revision.

Application deadlines, if significant circumstances are discovered that were not and could not be known to the applicant, are calculated from the day the essential circumstances were discovered. If deliberately false testimonies of witnesses, a false expert opinion, mistranslation, falsification of evidence, crimes of the parties, their representatives, etc. If there has been an annulment of the decision, sentence, ruling of the court or decision of the presidium of the court of the supervisory instance or the decision of the state body or local self-government body, which served as the basis for the adoption of the decision, ruling of the court or the decision of the presidium of the court of the supervisory instance, then the period is calculated from the day the decision enters into legal force, definitions, ordinances.

3. Consideration of an application (submission) on newly discovered circumstances

The court, having considered the application for review due to newly discovered circumstances, either satisfies the application and cancels the decision, ruling, court order, or refuses to review the case. The ruling of the court on satisfaction and review of the case due to newly discovered circumstances is not subject to appeal. Proceedings in the supervisory instance on an application for review of the case due to newly discovered circumstances take place in accordance with the rules of civil proceedings.

After considering and resolving the case on the merits, the court shall issue a ruling, which must contain:

1) the time and place of issuing the ruling;

2) the name and composition of the court;

3) information about the person who filed the application;

4) a summary of the judicial act, on the revision of which the question is raised;

5) a summary of the submitted materials and explanations of the persons participating in the case;

6) conclusions of the court;

7) the rules of law that the court was guided by when issuing the final ruling.

Lecture No. 16. Proceedings in court with the participation of foreign citizens

1. Procedural rights and obligations of foreign persons

In civil proceedings, foreign persons are understood to mean both foreign persons and stateless persons, foreign and international organizations. The legal status of foreign citizens in the Russian Federation is determined by the Federal Law of July 25, 2002 No. 115-FZ "On the Legal Status of Foreign Citizens in the Russian Federation". According to this federal law foreign citizen - an individual who is not a citizen of the Russian Federation and has evidence of citizenship (nationality) of a foreign state; a a stateless person - an individual who is not a citizen of the Russian Federation and does not have evidence of citizenship (nationality) of a foreign state.

Foreign organization - an organization established abroad. There is no specific definition of an international organization in the legal literature. In the science of public international law, signs of international organizations are distinguished, in accordance with which it is possible to define an international organization.

International organization - an association of states or national societies, associations, citizens of various states, established on a permanent basis, having governing bodies and acting to achieve certain goals.

According to Art. 62 of the Constitution of the Russian Federation, foreign citizens and stateless persons enjoy rights in the Russian Federation and bear obligations on an equal basis with citizens of the Russian Federation, except in cases established by federal law or an international treaty of the Russian Federation. According to Art. 398 Code of Civil Procedure of the Russian Federation, foreign citizens, stateless persons, foreign organizations, international organizations have the right to apply to the courts in the Russian Federation to protect their violated or contested rights, freedoms and legitimate interests. However, the Code of Civil Procedure of the Russian Federation also provides for such a provision that the Government of the Russian Federation may impose retaliatory restrictions on foreign persons of those states in whose courts the same restrictions on the procedural rights of Russian citizens and organizations are allowed.

It should also be pointed out that foreign citizens cannot be representatives in court or act in defense of the rights and legitimate interests of citizens of the Russian Federation.

2. Legal capacity of foreign international organizations

The Code of Civil Procedure of the Russian Federation stipulates that the civil procedural legal capacity and legal capacity of foreign citizens, stateless persons are determined by their personal law. In Art. 399 Code of Civil Procedure of the Russian Federation defines personal law. This is the right of the country of which the citizen has citizenship. If a citizen, along with Russian citizenship, also has foreign citizenship, his personal law is considered to be Russian law.

If a citizen has several foreign citizenships, his personal law shall be the law of the country in which the citizen has a place of residence. If a foreign citizen has a place of residence in the Russian Federation, Russian law is considered his personal law.

The personal law of a stateless person is the law of the country in which this person has a place of residence. A person who is not procedurally capable on the basis of a personal law may be recognized as procedurally capable in the territory of the Russian Federation if, in accordance with Russian law, he has procedural capacity.

With regard to the legal capacity of a foreign and international organization, it is determined in accordance with the personal law of a foreign organization or with an international treaty. According to Art. 400 Code of Civil Procedure of the Russian Federation personal law of a foreign organization considered the law of the country in which the organization is established. On the basis of the personal law of a foreign organization, its procedural legal capacity is determined.

A foreign organization that does not have procedural legal capacity in accordance with a personal law, as well as a foreign person, may be recognized on the territory of the Russian Federation as legally capable in accordance with Russian law. The procedural legal capacity of an international organization is established on the basis of an international treaty in accordance with which it was created, its constituent documents or an agreement with the competent authority of the Russian Federation.

Foreign citizens or foreign and international organizations may conduct their cases in court through representatives. Representatives in this case can be citizens of the Russian Federation, a lawyer, a law firm (having a permit or license), as well as a foreign lawyer and law firm.

3. Jurisdiction of cases involving foreign citizens

The jurisdiction of cases involving foreign citizens is determined in accordance with the provisions of Ch. 3 Code of Civil Procedure of the Russian Federation.

Courts in the Russian Federation are also entitled to consider cases involving foreign persons in cases where (Article 402 of the Code of Civil Procedure of the Russian Federation):

1) the governing body, branch or representative office of the foreign entity is located on the territory of the Russian Federation;

2) the defendant has property located on the territory of the Russian Federation;

3) in the case of the recovery of alimony and the establishment of paternity, the plaintiff has a place of residence in the Russian Federation;

4) in the case of compensation for harm caused by injury, other damage to health or death of the breadwinner, the harm was caused on the territory of the Russian Federation or the plaintiff has a place of residence in the Russian Federation;

5) in the case of compensation for damage caused to property, the action or other circumstance that served as the basis for filing a claim for compensation for damage took place on the territory of the Russian Federation;

6) the claim arises from an agreement under which full or partial performance must take place or took place on the territory of the Russian Federation;

7) the claim stems from unjust enrichment that took place on the territory of the Russian Federation;

8) in the divorce case, the plaintiff has a place of residence in the Russian Federation or at least one of the spouses is a Russian citizen;

9) in the case of protection of honor, dignity and business reputation, the plaintiff has a place of residence in the Russian Federation.

The exclusive jurisdiction of courts in the Russian Federation includes (Article 403 of the Code of Civil Procedure of the Russian Federation):

1) cases on the right to immovable property located on the territory of the Russian Federation;

2) cases on disputes arising from the contract of carriage, if the carriers are located on the territory of the Russian Federation;

3) cases of divorce of Russian citizens with foreign citizens or stateless persons, if both spouses have a place of residence in the Russian Federation;

4) cases on the case of establishing a fact of legal significance, or a fact that needs to be established, has taken place or is taking place on the territory of the Russian Federation;

5) cases, if a citizen in respect of whom an application for adoption (adoption) is being filed, on limiting the legal capacity of a citizen or on declaring him incompetent, on declaring a minor as fully capable (emancipation), on involuntary hospitalization in a psychiatric hospital, on extending the period of involuntary hospitalization of a citizen , suffering from a mental disorder, about a compulsory psychiatric examination, is a Russian citizen or has a place of residence in the Russian Federation;

6) cases where the person in respect of whom an application is filed for recognition as missing or declared dead is a Russian citizen or had the last known place of residence in the Russian Federation, and the establishment of the rights and obligations of citizens with a place of residence in the Russian Federation depends on the resolution of this issue. Russian Federation, organizations located in the Russian Federation;

7) cases on recognizing a thing located on the territory of the Russian Federation as ownerless or on recognizing the right of municipal ownership to an ownerless immovable thing located on the territory of the Russian Federation;

8) cases on the invalidation of a lost bearer security or order security issued by a citizen or a citizen who has a place of residence in the Russian Federation, or an organization or organization located on the territory of the Russian Federation, and on the restoration of rights in respect of them (call proceedings).

The parties among themselves, if one of the parties is a foreign person, may conclude a prorogation agreement, that is, change the jurisdiction of the case in advance before the court accepts it for consideration. The case, which was accepted by the court of the Russian Federation for proceedings, is resolved by it on its merits, even if due to a change in citizenship, place of residence or location of the parties, or other circumstances, it became within the jurisdiction of the court of another country (Article 405 of the Code of Civil Procedure of the Russian Federation).

4. Recognition and enforcement of decisions of foreign courts

Documents issued, drawn up or certified in accordance with foreign law in the prescribed form by the competent authorities of foreign states outside the Russian Federation in relation to Russian citizens or organizations or foreign persons are accepted by the courts in the Russian Federation in the presence of legalization, unless otherwise provided by an international treaty of the Russian Federation or federal law .

At the same time, documents drawn up in a foreign language must be submitted to the courts in the Russian Federation with a duly certified translation into Russian (Article 408 of the Code of Civil Procedure of the Russian Federation).

Decisions of foreign courts, including decisions on the approval of amicable agreements, are recognized and enforced in the Russian Federation, if this is provided for by an international treaty of the Russian Federation. The decision of a foreign court may be brought for enforcement within 3 years from the date of entry into force of the decision of a foreign court (Art. 409 Code of Civil Procedure of the Russian Federation). A claimant may file a petition for enforcement of a foreign court decision at the place of residence of the debtor or at the location of the debtor in the Russian Federation. If the location of the debtor in the Russian Federation is unknown, then the petition is filed with the court at the location of his property.

A petition for the enforcement of a foreign court decision must contain (Article 411 of the Code of Civil Procedure of the Russian Federation):

1) the name of the exactor, his representative, if the application is submitted by a representative, an indication of their place of residence, and if the exactor is an organization, an indication of its location;

2) the name of the debtor, an indication of his place of residence, and if the debtor is an organization, an indication of its location;

3) the request of the exactor for permission to enforce the decision or for an indication of the moment from which its execution is required.

Documents provided for by an international treaty of the Russian Federation are attached to the application, and if this is not provided for by an international treaty, the following documents are attached:

1) a copy of the decision of the foreign court, certified by a foreign court, for permission for the enforcement of which a petition has been initiated;

2) an official document stating that the decision has entered into legal force, if this does not follow from the text of the decision itself;

3) a document on the execution of the decision, if it was previously executed on the territory of the relevant foreign state;

4) a document from which it follows that the party against whom the decision was made and which did not take part in the proceedings was notified in a timely manner and in the proper manner of the time and place of the consideration of the case;

5) certified translation of documents into Russian.

The court may refuse to enforce the decision of a foreign court if there are the following grounds (Article 412 of the Code of Civil Procedure of the Russian Federation):

1) the decision, under the law of the country in whose territory it was made, has not entered into force or is not subject to execution;

2) the party against whom the decision was made was deprived of the opportunity to take part in the proceedings due to the fact that the notice of the time and place of the consideration of the case was not delivered to it in a timely and proper manner;

3) consideration of the case falls within the exclusive jurisdiction of the courts in the Russian Federation;

4) there is a court decision in the Russian Federation that has entered into legal force, adopted on a dispute between the same parties, on the same subject and on the same grounds, or there is a case in the proceedings of a court in the Russian Federation, initiated on a dispute between the same parties, on the same subject and on the same grounds before initiating a case in a foreign court;

5) the execution of the decision may damage the sovereignty of the Russian Federation or threaten the security of the Russian Federation or is contrary to the public policy of the Russian Federation;

6) the term for presenting the decision for enforcement has expired, and this term has not been restored by the court in the Russian Federation at the request of the exactor.

Lecture No. 17. Enforcement proceedings

After the court decision enters into legal force, the decision acquires the property of enforceability, and only in some cases the court can bring the decision into immediate execution. If the court decision is not executed by the parties voluntarily, then it can be enforced. Compulsory execution is also regulated by the provisions of the Federal Law "On Enforcement Proceedings in the Russian Federation".

Forcibly, as a rule, are executed judgments on award claims. After the court decision enters into legal force, the recoverer is issued a writ of execution, and another writ of execution is sent for execution of the court decision. As a rule, one writ of execution is issued for each judgment.

But if the decision is made in favor of several plaintiffs, then at the request of the exactors, the court must issue several writ of execution. If the original writ of execution or court order (which also has the property of a writ of execution) is lost, the court may issue a duplicate.

At the same time, a court session is scheduled, after which a ruling is issued. If the writ of execution has been lost by an official, the bailiff has the right to impose a fine on the official in the amount of up to 20 minimum wages.

If there are circumstances that impede the execution of a court order or decisions of other bodies, the recoverer, debtor, bailiff has the right to bring before the court that considered the case, or before the court at the place of execution of the court order, the question of a delay or installment plan of execution, a change in the method and procedure execution, as well as on the indexation of the sums of money awarded (Article 434 of the Code of Civil Procedure of the Russian Federation).

Enforcement proceedings may be suspended both on a mandatory basis and at the initiative of the court.

The judge is obliged to suspend enforcement proceedings in the following cases (Article 436 of the Code of Civil Procedure of the Russian Federation):

1) the death of the debtor, declaring him dead or declaring him missing, if the legal relationship established by the court allows succession, as well as initiation of proceedings on the insolvency (bankruptcy) of the debtor by the arbitration court;

2) loss of legal capacity by the debtor;

3) participation of the debtor in hostilities, performance of tasks in a state of emergency or martial law, as well as in conditions of military conflicts, or at the request of a claimant participating in hostilities or in performing tasks in a state of emergency or martial law, as well as in conditions of military conflicts;

4) filing a claim for the release of property from arrest (exclusion from the inventory), which is foreclosed on a writ of execution;

5) contestation by the debtor of the executive document in court, if such contestation is allowed by federal law;

6) filing a complaint with the court against the actions of bodies or officials authorized to consider cases of administrative offenses;

7) issuance of a ruling by a judge, who is granted the right by federal law to suspend the execution of a court decision.

The judge may suspend enforcement proceedings in the following cases (Article 437 of the Code of Civil Procedure of the Russian Federation):

1) reorganization of the organization that is the debtor;

2) requests of a debtor who is doing military service by conscription or under a contract in the Armed Forces of the Russian Federation, other troops, military formations and bodies created in accordance with the legislation of the Russian Federation;

3) the debtor is on a long business trip;

4) the debtor is undergoing treatment in an inpatient medical institution;

5) search for the debtor, his property or search for a child taken from the debtor;

6) appeals of the bailiff-executor to the court that issued the writ of execution, with a statement for clarification of the court decision adopted by him, subject to execution;

7) filing a complaint against the actions of a bailiff or his refusal to perform enforcement actions, as well as a refusal to challenge a bailiff.

After the elimination of the circumstances on which the enforcement proceedings were suspended, at the initiative of the court or the petition of the persons, the enforcement proceedings may be restored. In Art. 439 of the Code of Civil Procedure of the Russian Federation provides for cases of termination of enforcement proceedings by the court.

Enforcement proceedings are terminated if:

1) the recoverer has refused to collect or to receive the items confiscated from the debtor in the course of the execution of the court decision to transfer them to the recoverer;

2) the recoverer and the debtor have entered into an amicable agreement and it has been approved by the court;

3) after the death of a citizen who was a recoverer or debtor, or his declaration as dead or recognition as missing, the requirements or obligations established by a court decision cannot be transferred to the legal successor of the deceased or declared dead person or to the administrator of the property of the missing person;

4) the property of the liquidated organization is not sufficient to satisfy the claims of the exactor;

5) the limitation period established by federal law has expired for this type of recovery;

6) the court decision or act of another body, on the basis of which the enforcement document was issued, is cancelled.

If there are grounds for terminating enforcement proceedings, the writ of execution with an appropriate mark is returned by the bailiff to the court or state or other body that issued this document.

All enforcement measures assigned by the bailiff-executor are canceled. Stopped enforcement proceedings cannot be re-initiated.

Code of Civil Procedure of the Russian Federation defines property that cannot be levied under enforcement documents:

1) residential premises (parts thereof), if for a citizen-debtor and members of his family living together in the premises owned, it is the only premises suitable for permanent residence, with the exception of the property specified in this paragraph, if it is the subject of a mortgage and foreclosure may be levied in accordance with mortgage legislation;

2) land plots on which the objects specified in par. 2 hours 1 tbsp. 446 of the Code of Civil Procedure of the Russian Federation, as well as land plots, the use of which is not related to the implementation of entrepreneurial activities by the debtor citizen, with the exception of the property specified in this paragraph, if it is the subject of a mortgage and execution may be levied on it in accordance with the legislation on mortgage;

3) items of ordinary home furnishings and household items, personal items (clothes, shoes, etc.), with the exception of jewelry and other luxury items;

4) property necessary for the professional activities of a citizen-debtor, with the exception of items whose value exceeds 100 minimum wages established by federal law;

5) breeding, dairy and working cattle, deer, rabbits, poultry, bees used for purposes not related to entrepreneurial activities, as well as farm buildings and structures, feed necessary for their maintenance;

6) seeds required for the next sowing;

7) food and money for a total amount of at least three times the established subsistence level of the debtor citizen himself, his dependents, in case of their incapacity for work - six times the established subsistence minimum for each of these persons;

8) the fuel needed by the family of the debtor citizen for preparing their daily food and heating during the heating season of their living quarters;

9) means of transport and other property necessary for the citizen-debtor in connection with his disability;

10) prizes, state awards, honorary and commemorative signs awarded to the debtor citizen.

List of used literature

1. Barykin D. A. Civil procedural law (civil process) in the schemes: Educational visual aid. M., 2005.

2. Dekhtereva L. P., Pivulsky V. V., Shugaeva O. A. Civil process. M., 2005.

3. Vikut M. A. Civil process in Russia: Textbook. M., 2004.

4. Vikut M. A., Zaitsev I. M. Civil process. Lecture course. Saratov, 1998.

5. Vlasov A. A. A lawyer must be considered "a person participating in the case." // Russian justice, 2001. No. 6.

6. Zheruolis I. A. On the relationship between the material and the procedural in the claim. / Forms of protection of law and the ratio of substantive and procedural in individual legal institutions. Kalinin. 1977. S. 14-15.

7. Gurevich M. A. Judgment (theoretical problems). M., 1976.

8. Zeider N. B. Judgment in a civil case. M., 1966. S. 46.

9. Maslennikova N. I. The legal force of a judgment. civil process. / Ed. K. I. Komisarova M., 1996.

Notes

1. Barykin D. A. Civil procedural law (civil process) in the schemes: Educational visual aid. M., 2005.

2. Dekhtereva L. P., Pivulsky V. V., Shugaeva O. A. Civil process. M., 2005.

3. Vikut M. A. Civil process in Russia: Textbook. M., 2004.

4. Vikut M. A., Zaitsev I. M. Civil process. Lecture course. Saratov, 1998.

5. Vikut M. A. Civil process in Russia: Textbook. M., 2004.

6. Vlasov A. A. A lawyer should be considered a "person participating in the case" // Russian Justice, 2001. No. 6.

7. Vikut M. A. Civil process in Russia: Textbook. M., 2004.

8. Gurevich M. A. Judgment (theoretical problems). M., 1976.

9. Zeider N.B. Judgment in a civil case. M., 1966. S. 46.

10. Gurvich M. A. Court decision. Theoretical problems. M., 1976.

11. Maslennikova N. I. The legal force of a judgment. // Civil process / Ed. K. I. Komissarova M., 1996.

12. Zeyder N.V. Judgment in a civil case. M., 1966.

Author: Gushchina K.O.

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