Civil procedural law. Cheat sheet: briefly, the most important

Lecture notes, cheat sheets
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Civil procedural law. Cheat sheet: briefly, the most important

Lecture notes, cheat sheets

Table of contents

1. THE CONCEPT OF CIVIL PROCEEDINGS (COURTES). OBJECTIVES, TYPES AND STAGES OF CIVIL LEGAL PROCEEDINGS

Civil Litigation (civil process) - a certain, specific activity of all participants in legal proceedings, including the bodies for executing court decisions, regulated by civil procedural norms.

The Constitution of the Russian Federation enshrined the basic principles of civil proceedings:

1) everyone is equal before the law and the court;

2) the right of everyone to privacy, personal and family secrets, protection of their honor and good name;

3) the right of everyone to use their native language;

4) the right of everyone to protect their rights and freedoms by all means not prohibited by law, etc.

Tasks of civil legal proceedings Art. 2 Code of Civil Procedure of the Russian Federation:

1) correct and timely consideration and resolution of civil cases in order to protect violated or disputed rights, freedoms and legitimate interests;

2) strengthening of law and order, prevention of offenses, formation of a respectful attitude towards the law and the court. The current legislation establishes a certain procedure for considering disputes arising from civil, family, labor and other material legal relations, as well as cases arising from public law relations, and cases of special proceedings, which consists of stages of the process defined by law.

Process stage - a certain part of the process, united by a set of procedural actions aimed at achieving an independent goal.

Types of process steps:

1) initiation of civil proceedings;

2) preparation of the case for trial;

3) legal proceedings;

4) making a decision;

5) proceedings in a court of second instance;

6) proceedings in a court of supervisory authority;

7) revision of decisions and rulings of the court on newly discovered circumstances.

Civil Litigation is divided into the following types:

1) writ - characterized by the absence of the main stages of the civil process. A judgment replaces a court order;

2) claim - is characterized by the following features:

a) the existence of a dispute about the law, which is intended to be resolved by the court;

b) equality of the subjects of the dispute;

c) the subject of protection is a violated or contested right or legally protected interest;

d) is initiated by filing a statement of claim;

3) proceedings in cases arising from public legal relations, which include cases:

a) on declaring invalid normative legal acts;

b) on challenging decisions, actions of state authorities, local governments, officials, state and municipal employees;

c) on the protection of electoral rights and the right to participate in a referendum;

4) special proceedings - characterized by the absence of a dispute about the right. The object of protection is not the violated or disputed right, but the legally protected interest of the applicant;

5) proceedings in cases on challenging the decisions of arbitration courts;

6) proceedings in cases arising from enforcement legal relations - this includes the procedural actions of the court that affect the process of execution of court decisions and decisions of other bodies.

2. THE CONCEPT OF CIVIL PROCEEDING LAW: SUBJECT, METHOD AND SYSTEM

Civil procedural law - a branch of law that includes a set of procedural rules located in a certain system that regulate social relations that arise between the court and participants in the process in the administration of justice in civil cases.

Civil procedural law is a theoretical substantiation of the civil process.

Subject of regulation civil procedural law - those social relations between the court and other subjects, as well as actions carried out in the process of civil proceedings that can be subject to legal regulation, i.e. legal relations and actions that are essentially legal facts. In a civil process, non-legal relations cannot develop; for its subjects, only those connections and actions that are provided for by law and in the form in which they must be performed matter.

law method - this is an objectively existing set of methods and techniques with the help of which the subject of this science is known.

law method has the following characteristic features:

1) the method can only include those methods that focus attention on the established patterns inherent in all relations included in the subject of this branch of law;

2) the methods used must be dynamic, i.e. the ability to improve, since there is no universal technique that can cover diverse relationships regulated by a particular branch of law due to the unpredictability of their occurrence;

3) the method may include a set of only those techniques and methods by which it is possible to simultaneously study the relations included in the subject of the branch of law.

Legal regulation method civil procedural law - a set of legal means, legal techniques and methods by which the state regulates social relations arising from and in connection with the implementation of justice by courts of general jurisdiction and justices of the peace in civil cases, and influences them.

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

a common part - contains the main provisions, institutions related to all civil proceedings: the principles of legal proceedings and guarantees for their implementation, the legal status of the court and the persons involved in the case, representation, procedural terms, court costs, liability, general rules of proof, etc.

Special part - contains a set of rules governing the movement, the development of civil proceedings in stages from its initiation to the issuance and revision of a judgment, as well as the features of the process in certain categories of cases (order, claim, special, arising from public law and executive legal relations) and in relation to various subjects (in particular, foreigners).

3. SOURCES OF CIVIL PROCEDURAL LAW

Source of law - a form of expression outside the state will, aimed at regulating certain relations.

Sources of civil procedural law - normative acts, including the norms of this branch of law.

Sources of civil procedural law are divided into:

1) special legislative acts regulating the civil process of the Russian Federation:

a) the Constitution of the Russian Federation;

b) the Civil Code of the Russian Federation; c) the Family Code of the Russian Federation;

d) Law of the Russian Federation "On acts of civil status";

e) Law of the Russian Federation "On State Duty";

f) Law "On the Judicial System of the Russian Federation"; "On the judiciary";

g) Law "On Justices of the Peace" and others;

2) normative acts regulating the international civil process (i.e. legal proceedings with the participation of foreigners (foreign legal entities) and stateless persons):

a) The Hague Convention of November 15.11.1965, XNUMX "On the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters";

b) The Hague Convention of March 18.03.1970, XNUMX "On the taking of evidence abroad in civil and commercial matters"; bilateral conventions concluded between the Russian Federation and foreign states on legal assistance in family, civil and criminal cases, etc.;

3) acts of judicial interpretation of the norms of civil procedural law (decisions of the Plenum of the Supreme Court of the Russian Federation, as well as reviews of judicial practice prepared by the Presidium of the Supreme Court of the Russian Federation with the assumption of analogy in civil proceedings. These acts cannot establish new rules, but only give an interpretation of existing legislative norms .

A feature of the sources of civil procedural law is their high legal status.

According to the legal force, the sources are divided into:

1) Constitution of the Russian Federation. The main body of constitutional norms in force in the field of civil proceedings is contained in Chapter. 7 "Judicial power". Article 118 of the Constitution of the Russian Federation establishes the principle of administering justice only by the court, Art. 120 proclaims the independence of judges and their subordination only to the Constitution of the Russian Federation and federal law. Article 123 of the Constitution of the Russian Federation reveals the content of the principle of publicity of judicial proceedings, speaks of adversarial nature and equality of the parties;

2) international treaties of the Russian Federation with other states. Article 1 of the Code of Civil Procedure of the Russian Federation establishes the priority of the norms of international treaties of the Russian Federation over the rules of Russian civil proceedings;

3) Civil Procedure Code of the Russian Federation - contains the main part of the norms regulating the order of legal proceedings in civil cases. The provisions of other laws regulating individual civil procedural relations must comply with the provisions of the Code of Civil Procedure of the Russian Federation;

4) other federal laws: Federal Constitutional Law "On the Judicial System of the Russian Federation", Law of the Russian Federation "On the Status of Judges in the Russian Federation", Federal Laws "On Enforcement Proceedings", "On Bailiffs", "On Justices of the Peace in the Russian Federation", "On Advocacy and advocacy in the Russian Federation", "On Arbitration Courts in the Russian Federation", etc.

4. CONCEPT, SIGNIFICANCE AND CLASSIFICATION OF THE PRINCIPLES OF CIVIL PROCEDURAL LAW

Principles of civil procedural law - the main provisions on the basis of which the specificity, essence and content of this branch of law is determined.

Meaning of the principles:

1) are important democratic guarantees of justice in civil cases;

2) the court is guided not only by specific civil procedural rules, but also by the principles of procedural law;

3) contribute to the correct interpretation of all norms of civil procedural law;

4) contribute to overcoming gaps in civil procedural law. The application of the analogy of law or law is possible only on the basis of the principles of civil procedural law;

5) determine the structure and essential features of civil procedural law, its general provisions;

6) determine the content of procedural law as a whole;

7) cover all norms and institutions of civil procedural law;

8 indicate the purpose of the process and methods for achieving it;

9 predetermine the nature and content of the activities of subjects of law, the general direction of development and further improvement of this industry.

All additions and changes that are made to civil procedural legislation are formulated primarily on the basis of the principles of the industry.

Structure of principles civil procedural law consists of the following components:

1) the presence of certain ideas in the field of legal consciousness, including the legal consciousness of judges and other lawyers, and in legal science;

2) consolidation of relevant provisions in the current legislation;

3) implementation of the principles of law in a particular area of social relations.

The system of civil procedural law includes the whole set of principles of a given branch of law in their correlation and interdependence.

Classification of principles of civil procedural law.

1. By the nature of the normative source, in which a specific principle is enshrined:

1) constitutional principles:

a) administration of justice only by the court;

b) the independence of judges and their subordination only to the law;

c) the principle of irremovability of judges;

d) the principle of immunity of judges;

e) the principle of competitiveness of the parties;

f) the principle of equality before the law and the courts;

g) the principle of publicity of the trial.

2) the principles enshrined in the Code of Civil Procedure of the Russian Federation:

a) the principle of sole and collegial consideration of a civil case;

b) the language of civil proceedings; c) the principle of discretion;

e) a combination of oral and written language;

f) the principle of immediacy;

g) the principle of continuity.

2. Depending on whether one or more industries have relevant principles:

1) intersectoral;

2) industry specific;

3. According to the object of regulation:

1) organizational and functional principles - are simultaneously principles of organizing justice (judicial) and functional;

2) functional - thanks to these principles, the main functions of the court are implemented;

3) organizational - determine the procedure for organizing the activities of the court.

5. CIVIL PROCEDURAL RULES (CONCEPT, TYPES, FEATURES, STRUCTURE). THE OPERATION OF CIVIL PROCEDURES IN TIME AND SPACE

Norm of civil procedural law is an element of the structure of law.

The norm of civil procedural law is a generally binding rule of conduct that gives participants in civil procedural relations subjective rights and legal obligations.

The civil procedural norm has the following features:

1) is established exclusively by federal law;

2) regulates legal relations in a special area - in the area of administration by courts of general jurisdiction and magistrates of justice in civil cases;

3) the law enforcer of the civil procedural norm and the obligatory participant of the legal relations regulated by it is the court (judge);

4) the legal interpretation of the norm is carried out by the Plenum of the Supreme Court of the Russian Federation.

Legal rules are divided into:

1) regulatory - regulations aimed at regulating relations by providing participants in the process with rights and assigning responsibilities to them:

a) binding - establish the obligations of a person to perform certain actions;

b) prohibiting - establish the obligation of a person to refrain from certain actions;

c) authorizing - establish subjective rights to perform certain actions;

2) protective - regulate state coercive measures to protect the rights of participants in the process (sanctions);

3) generalizing - have an additional character and are not an independent regulatory basis for the emergence of legal relations:

a) general - aimed at fixing in a generalized form the features of regulated relations;

b) declarative - norms-prescriptions that formulate the legal principles underlying the legal regulation of relations in a certain area;

c) definitive - define in a generalized form the signs of certain legal categories.

Also, the rules are divided into:

1) absolutely certain - exhaustively formulate the conditions of action of the participants in the process, their rights and obligations;

2) relatively certain - do not contain exhaustive instructions and leave the court to decide the issue of law, taking into account specific circumstances:

a) situational - regulate actions by an act of the court, depending on the specific situation;

b) alternative - provide for the possibility of the arbitration court using one of several precisely designated options for actions or the commission by persons participating in the case of any of the actions allowed by law;

c) optional - provide, along with the main option, an optional option of action.

The rule of law takes effect after its entry into force. The rule of law has no retroactive effect and applies to relations that have arisen after its entry into force. The operation of the law extends to relations that arose before its entry into force, only in cases where this is expressly provided for by law.

The rule of law applies to the entire territory of the Russian Federation or to a specific territorial area in the event that this is provided for by federal law.

6. ESSENCE, MAIN FEATURES AND SIGNIFICANCE OF THE CIVIL PROCEEDING FORM: CONCEPT, FEATURES, SIGNIFICANCE AND CONSEQUENCES OF ITS VIOLATION

procedural form - a consistent, established by the norms of civil procedural law, the procedure for considering and resolving a civil case, including a certain system of guarantees.

Procedural actions are performed in the order and in the strict sequence established by law. On the basis of the procedure established by law, civil procedural legal relations arise, develop and terminate at all stages of the process.

The procedural order (procedural form) strictly regulated by law distinguishes the judicial protection of the rights of citizens and organizations from the protection of rights by other bodies (administrative).

Purpose of the procedural form is to impart unity, homogeneity to the sectoral structure of procedural rules and requirements for the optimal achievement of the tasks facing the state in regulating the relevant legal sphere.

An action performed outside the procedural form is void and does not entail legal consequences.

The main features of the civil procedural form:

1) normativity - the conditions and procedure for the administration of justice in civil cases are strictly determined by the norms of the Constitution of the Russian Federation, the Code of Civil Procedure of the Russian Federation and federal laws;

2) the obligatory nature of the rules provided for by law - in case of their non-fulfillment, adverse consequences for the participant in procedural legal relations occur (fine, cancellation of a court decision, etc.);

3) consistency of the civil process - means the unity and interconnection of the actions performed by the participants in civil proceedings as elements of the structure of a single, integral procedural mechanism;

4) fixes the circle of persons who have a legal interest in the case, in connection with which they enter or are involved in the process, as well as other participants in the proceedings (persons participating in the case, witnesses, specialists, translators, etc.);

5) generality - extends to all stages of civil proceedings.

The main features of the civil procedural form are important in that they should be taken into account not only in the administration of justice, but also in the course of law-making activities, the form of which is largely determined by the form of the procedure of the subject of legal regulation.

Compliance with the procedural form - an indispensable condition for the legality of judicial decisions. Significant violations of the procedural form are the unconditional basis for the annulment of the judgment.

The meaning of the civil procedural form:

1) provides the parties interested in the outcome of the case with certain legal guarantees of the legality of the resolution of the dispute;

2) ensure equality of procedural rights and procedural obligations;

3) obliges the court to consider and resolve disputes about the law and at the same time strictly observe the norms of substantive and procedural law, make lawful and justified decisions in court session in compliance with the procedural guarantees for persons participating in the case established by federal laws or other regulatory acts;

4) establishes the exact observance of the procedure for the consideration of the case.

7. THE PLACE OF CIVIL PROCEDURAL LAW IN THE SYSTEM OF RUSSIAN LAW. PROCESS SCIENCE

Any branch of law cannot function separately from other branches. They interact with each other, as they regulate various facets of social relations.

First of all, the domestic system of law is divided into substantive and procedural law.

Civil procedural law interacts with:

1) civil law - is substantive law and establishes rules binding on all citizens, as well as liability in case of violation of these rules. Civil procedural law regulates the procedure for considering cases resulting from violations of substantive law. The civil process ensures the enforcement of violated or contested subjective civil rights, family, labor and other material rights of individuals and legal entities.

2) constitutional law - the Constitution of the Russian Federation has direct effect and supreme legal force. Procedural norms cannot contradict the Constitution of the Russian Federation. If any legal relationship is not regulated by law, the norms of the Constitution of the Russian Federation can be directly applied;

3) criminal law - is expressed in the fact that the Criminal Code of the Russian Federation contains criminal law sanctions that reinforce the norms of civil procedural law;

4) arbitration procedural law - the process in arbitration courts and courts of general jurisdiction goes through similar stages. However, unlike civil proceedings, arbitration is designed to administer justice in the field of entrepreneurial and other economic activities. The subjects of the arbitration process are legal entities and citizens who are individual entrepreneurs. 5) administrative law - the norms of administrative law regulate the procedure for the adoption of administrative acts and their effect, and civil procedural law - the procedure for appealing them.

The subject of the science of civil procedural law - civil procedural law itself in close connection with the practice of its application.

Method of science of civil procedural law - first of all, the method of dialectics, on the basis of which the norms of civil procedural law are studied in their formation and development, in conjunction with other social phenomena. The science of civil procedural law widely uses both private (concrete) methods and techniques for studying scientific problems (comparative legal, concrete sociological, especially generalization of judicial practice, analysis of statistical data, questioning, etc.).

Tasks of the science of civil procedural law - this is the definition of the way for the further development of democracy in the field of civil justice and the comprehensive improvement of the institutions of civil procedural law in order to achieve their greatest efficiency.

Into the system of science the components of the subject of its study are included:

1) civil procedural law:

a) civil procedural law of Russia;

b) civil procedural law of foreign countries;

2) non-judicial forms of protection of the rights of citizens and organizations:

a) notary;

b) arbitration courts.

8. CONCEPT, BACKGROUND AND STRUCTURE OF CIVIL PROCEDURAL RELATIONSHIPS

Civil procedural relations - these are relations regulated by the norms of civil procedural law that arise in the proceedings on a specific (certain) civil case between the court and participants in the civil process.

A distinctive feature of civil legal relations is that in any legal relationship, one of the participants is always the court.

The scheme of civil procedural legal relations at all stages of the process is approximately the same. However, the grounds for the emergence of such relations and their subject composition are different.

The grounds for the emergence admit:

1) the norm of civil procedural law - is the main and necessary prerequisite for the emergence of civil procedural legal relations in a specific case;

2) the action of the subject - the norm itself does not give rise to legal relations, the norm must be implemented by the commission of the action of a particular person or his inaction.

Action (inaction) can be a prerequisite for the emergence of procedural legal relations only if it is of a legal nature, i.e., has become a legal fact;

3) sometimes legal relations arise in the case of a set of legal facts - the legal composition. The legal composition serves as a prerequisite not only for the emergence, but also for the termination of procedural legal relations;

4) civil procedural legal capacity - the possibility granted to the subject by law to have procedural rights in civil proceedings and bear procedural obligations. Civil procedural legal capacity is equally enjoyed by all citizens and organizations;

5) civil procedural capacity - the ability granted by law to the subject of a civil procedural legal relationship to exercise civil procedural rights and fulfill the procedural duties assigned to him through personal actions within the limits of the law. Citizens have full legal capacity upon reaching adulthood. Minors aged 14 to 18 years have partial legal capacity. Persons may have limited legal capacity. Legal entities have procedural legal capacity and legal capacity from the moment of their registration. The procedural legal capacity of citizens terminates with the death of a citizen or with the declaration of death in court. The procedural legal capacity and legal capacity of a legal entity ends with the cessation of its existence, and the procedural legal capacity and legal capacity of citizens ends with the death of a citizen or when he is declared legally incompetent.

Unlike substantive legal relations, the basis for the emergence, change or termination of procedural legal relations cannot be agreements between the court and participants in the process. But agreements between parties and third parties are possible.

The content of legal relations are a subjective right and a legal obligation.

9. FEATURES OF CIVIL PROCEDURAL RELATIONSHIPS

Civil procedural legal relations have the following features:

1) the obligatory subject of civil procedural legal relations is the court - bypassing the court, civil procedural legal relations do not arise. Direct civil procedural legal relations between the plaintiff and the defendant do not exist. In civil procedural legal relations, the court acts as both a collegial body and a single judge. Collegial consideration of cases is carried out by a court consisting of three professional judges;

2) each participant in the process is the bearer of independent rights and obligations in relation to the court. The court interacts with the plaintiff, defendant, representative, etc. In addition, each of these participants interacts with the court separately. Legal relations arise in the exercise of their rights by these persons. According to the law, the persons participating in the case have the right to get acquainted with the case materials, make extracts from them, make copies, challenge, present evidence and participate in their study, ask questions to other persons participating in the case, witnesses, experts and specialists; make petitions, including the request for evidence; give explanations to the court orally and in writing; present their arguments on all issues arising during the trial, object to the petitions and arguments of other persons participating in the case; appeal court decisions and use other procedural rights provided by the legislation on civil proceedings. Persons participating in the case must conscientiously use all procedural rights belonging to them;

3) these legal relations are of an authoritative nature - authoritativeness is manifested in the leading role of the court, which is a public authority and exercises coercion in relation to the participants. The court has significant responsibilities for the administration of justice, for the implementation of the entire civil process, where the court acts as a leading link, organizing the activities of all participants in the process. To carry out these duties, the court is endowed with a significant amount of powers, as well as means of coercion. This is established by the legislator with the aim of unhindered administration of justice by the court and the issuance of a competent, complete and fair decision;

4) the constant movement and development of civil procedural legal relations, but not their repetition, which fundamentally distinguishes procedural legal relations from material ones. The civil process is divided into a significant number of stages that perform certain functions assigned to them;

5) consistency of civil procedural legal relations - in the system, the main relationship is the relationship between the plaintiff and the court;

6) civil procedural legal relations arise from the moment of initiation of a civil case and are terminated by the execution of a court decision, ruling, resolution;

7) the subject of procedural legal relations is either a civil law or administrative law dispute.

10. SUBJECTS OF CIVIL LEGAL RELATIONSHIPS. BODIES OF THE INTERNAL AFFAIRS AS PARTICIPANTS OF CIVIL PROCEEDINGS

Subjects of civil procedural relations are participants in a civil procedural legal relationship.

Subjects of legal relations.

1. Court - is a mandatory subject of every civil procedural relationship. As a public authority administering justice, the court occupies the main and leading position in legal proceedings, guiding the process. The powers of the court are manifested simultaneously as the rights and obligations with which it is endowed to perform the functions assigned to it.

In civil procedural legal relations, the court acts as a collegiate body and a sole judge. Collegial consideration of cases is carried out by a court composed of three professional judges.

Subjects of civil procedural legal relations are the courts of first and second instances, as well as courts reviewing civil cases in the order of supervision and on newly discovered circumstances. The court, as a subject of procedural legal relations, has procedural rights and bears procedural obligations to the participants in civil proceedings.

2. Persons involved in the case, - parties, third parties, the prosecutor, persons applying to the court for the protection of the rights, freedoms and legitimate interests of other persons or entering into the process in order to give an opinion, as well as applicants and other interested parties in cases of special proceedings and in cases arising from public legal relations.

These persons must have a certain interest in the outcome of the case. Legal interest - based on the law, the expected legal result of the consideration and resolution of the case for a given person.

The persons involved in the case, the legal interest is different in nature. For some, it is of a personal, subjective nature (for the parties, third parties, applicants), for others it is state-legal. At the same time, legal interest should be distinguished from actual interest based on relations of kinship, friendship, hostility, subordination.

3. Participants in legal proceedings who contribute to justice - witnesses, experts, translators, court representatives. A characteristic feature of the participants in civil procedural legal relations of this group is that they do not have a legal interest in the outcome of the case, but simply assist justice in the form of performing labor functions or for remuneration.

To perform the function of promoting justice, the subjects of all three groups are endowed with procedural rights and obligations.

Differences between persons participating in the case and other subjects of civil procedural relations:

1) have their own substantive and procedural interest;

2) are endowed with their own procedural rights;

3) determine the course of the trial itself;

4) the list of persons participating in the case is exhaustively established in the Code of Civil Procedure of the Russian Federation and is not subject to broad interpretation.

11. CONCEPT OF PERSONS PARTICIPATED IN THE CASE. CIVIL PROCEEDING LEGALITY AND CAPABILITY

Persons involved in the case, are participants in the process who have an independent legal interest (personal or public) in the outcome of the process (court decision), acting in the process on their own behalf, having the right to perform procedural actions aimed at the emergence, development and completion of the process, which are subject to legal power of decision.

Composition of persons participating in the case:

1) sides;

2) third parties;

3) prosecutor;

4) persons applying to the court for the protection of the rights, freedoms and legitimate interests of other persons;

5) those entering the process for the purpose of giving an opinion;

6) applicants;

7) other interested persons in cases of special proceedings and in cases arising from public legal relations.

The Code of Civil Procedure of the Russian Federation has endowed these persons with certain rights and imposed legal obligations on them.

The persons participating in the case have the right:

1) get acquainted with the case materials, make extracts from them, make copies, file challenges;

2) present evidence and participate in their research;

3) to ask questions to other persons participating in the case, witnesses, experts and specialists; make petitions, including the request for evidence;

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

5) present your arguments on all issues arising during the trial, object to the requests and arguments of other persons participating in the case;

6) appeal court decisions and use other procedural rights provided by the legislation on civil proceedings.

The persons participating in the case bear procedural obligations. In case of non-fulfillment of procedural obligations, liability arises.

Civil standing - the possibility, enshrined by law, to have civil procedural rights and to bear obligations.

Civil procedural legal capacity is equally recognized for all citizens and organizations that, in accordance with the legislation of the Russian Federation, have the right to judicial protection of rights, freedoms and legitimate interests.

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 years and organizations).

According to the law, there are a number of circumstances when a minor acquires full legal capacity, i.e. a minor can personally exercise his procedural rights and perform procedural duties in court. This is possible in the case of emancipation. According to the law emancipation happens in case:

1) marriage of a minor;

2) declaring him fully capable due to the fact that the minor works under an employment contract or has another income that ensures his worthy existence.

12. PARTIES

Parties in civil proceedings - these are the persons participating in the case, whose dispute about a subjective right or legally protected interest, the court must consider and resolve.

To be recognized as a party in a civil process, it is sufficient to have civil procedural legal capacity, and in order to directly (personally) exercise one's rights in court and entrust the case to a representative, one must also have procedural legal capacity.

The parties in civil proceedings are:

1) plaintiff - a person, upon whose application a case has been initiated, who has applied to the court for the protection of rights, freedoms and legitimate interests;

2) defendant - a person called by the court to answer at the request of the plaintiff. According to the plaintiff, the defendant is a person who has violated or disputes his subjective right or legally protected interest.

The parties enjoy equal procedural rights and bear equal procedural obligations.

Along with the rights that belong to them, as well as to all persons participating in the case, the parties have the right:

1) dispose of their subjective rights - both material and procedural; the plaintiff has the right to abandon the claim, change the basis or subject of the claim, increase or decrease the amount of the claim;

2) the defendant may recognize the claim;

3) the parties have the right to terminate the dispute by amicable agreement;

4) the party in whose favor the decision was made has the right to demand enforcement of the decision, to be present at the actions of the bailiff for the execution of the decision and to perform other procedural actions provided for by law.

The parties are obliged:

1) fulfill their procedural duties in good faith;

2) bear the burden of asserting the facts referred to in substantiation of their claims and objections, and the obligation to prove these facts by presenting the necessary evidence;

3) inform the court about the change of his place of residence and appear in court;

4) they bear legal costs and a number of other obligations;

5) unfair use of procedural rights or failure to fulfill procedural obligations may have adverse (unfavorable) consequences for the parties (return of the statement of claim, leaving the statement (claim) without consideration, adjournment of the case, consideration of the case in the absence of a party, issuance of a default decision). The law provides for the possibility of participation in a case by several plaintiffs or defendants, i.e., a lawsuit can be brought to court jointly by several plaintiffs or against several defendants (procedural complicity).

Procedural complicity is allowed if:

1) the subject of the dispute is the common rights or obligations of several plaintiffs;

2) the subject of the dispute is the common rights or obligations of several defendants;

2) the rights and obligations of several plaintiffs or defendants have one basis; Each of the plaintiffs or defendants in relation to the other party acts independently in the process. The accomplices may entrust the conduct of the case to one or more of the accomplices.

13. THIRD PARTIES

Third parties - persons entering into a process that has already arisen between the plaintiff and the defendant in connection with the interest in resolving the dispute along with the parties.

Third parties may intervene by filing a claim at any stage of the legal process. When a third person enters the process, declaring independent claims on the subject of the dispute, the judge decides only on his admission. In accordance with the principle of optionality, it is impossible to involve a third party in the process without his will.

The law distinguishes between 2 types of third parties depending on the degree of their interest in the process.

1. Third parties making independent claims regarding the subject of the dispute, - persons who entered into the case before the adoption of a court decision by the court of first instance to protect their independent rights and legitimate interests.

They enjoy all the rights and bear all the obligations of the plaintiff. With regard to persons who make independent claims regarding the subject of the dispute, the judge issues a ruling on recognizing them as third parties in the case under consideration or on refusing to recognize them as third parties, against which a private complaint may be filed.

A court ruling shall be issued on the entry into the case of third parties declaring independent claims regarding the subject of the dispute.

A third person making independent claims must be distinguished from a co-plaintiff. The claims of the co-plaintiffs are always addressed to the defendant and are not mutually exclusive.

Differences:

1) the claim of a third party, unlike the claim of accomplices, cannot be filed jointly with the original claim;

2) the claim of the original plaintiff and the claim of a third party directed at the same object of the dispute are mutually exclusive. 2.

Third parties who do not make independent claims regarding the subject of the dispute, are persons participating in a case on the side of the plaintiff or defendant due to the fact that the decision in the case may affect their rights or obligations in relation to one of the parties.

They 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 declare independent claims regarding the subject of the dispute enjoy the procedural rights and bear the procedural obligations of the party, with the exception of 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 to file a counterclaim and demand enforcement of a court decision.

A court ruling shall be issued on the entry into the case of third parties not declaring independent claims regarding the subject of the dispute.

When third parties enter the process, the case is considered in court from the very beginning.

The decision on the issue of involving or admitting third parties to participate in the case is formalized by a court ruling, which cannot be appealed, since it does not exclude the possibility of further progress of the case.

14. PARTICIPATION OF THE PROSECUTOR IN CIVIL PROCEEDINGS

There are two forms of participation of the prosecutor in civil proceedings:

1) applying to the court to initiate proceedings in a civil case in order to protect the rights and interests of other persons. An application in defense of the rights, freedoms and legitimate interests of a citizen can be filed by a prosecutor only in cases where the citizen, due to health reasons, age, incapacity and other valid reasons, cannot go to court himself;

2) entry into the process initiated by the interested person. Features of the participation of the prosecutor in court:

1) the prosecutor, on behalf of the Russian Federation, supervises the implementation of laws in force on its territory. The prosecutor is classified as a person participating in the case, since he has a certain interest in the outcome of the case. The interest of the prosecutor is state-legal;

2) in civil proceedings, the prosecutor acts independently and independently of other persons participating in the case, since his interest in the process follows from his competence;

3) the prosecutor ensures the legality of the actions of all participants in the proceedings, the correctness of the decisions issued by the court, eliminates any violations of the law, assists the court in the administration of justice;

4) by virtue of his competence, the prosecutor may be interested in the case and may participate in the consideration and resolution of any civil case;

5) the basis for the participation of the prosecutor is that the prosecutor participates in the consideration of civil cases by the courts, if this is required by the protection of the rights of citizens, their freedoms and the legitimate interests of society and the state;

6) the reason for the participation of the prosecutor in the process is an oral or written statement of citizens, a message from state bodies, public or other organizations, publications in the media, etc.

Categories of civil cases in which prosecutors are required to participate by virtue of law:

1) on the protection of citizens’ electoral rights;

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

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

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

5) on deprivation of parental rights;

6) on restriction of parental rights.

The prosecutor has a range of procedural rights:

1) get acquainted with the case materials;

2) submit recusals and other petitions;

3) present evidence and participate in the examination of evidence;

4) to ask questions at the court session to other persons participating in the case, witnesses, experts;

5) give opinions on all issues arising in the course of the trial;

6) give opinions on the merits of the case as a whole, challenge decisions and rulings;

7) perform other procedural actions provided for by law.

The procedural rights of the prosecutor are at the same time his duties.

15. PARTICIPATION OF STATE BODIES, LOCAL GOVERNMENT BODIES, ORGANIZATIONS AND CITIZENS PROTECTING VIOLATED OR CONTESTED RIGHTS, FREEDOMS AND LAW-PROTECTED INTERESTS OF OTHER PERSONS

State 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 number of persons.

At the same time, these bodies have a certain interest, which is of a state-legal or public nature, and, therefore, they can be attributed to the persons participating in the case.

State bodies, local self-government bodies, other bodies and persons participating in civil proceedings act in the process on their own behalf.

Conditions for filing a claim in defense of rights, freedoms and legally protected interests:

1) filing a claim must be provided for by law;

2) there must be a request from the person in defense of whose rights the civil case is being initiated. But at the same time, the legislator has provided an exception to this rule, i.e., an application in defense of the legitimate interests of an incapacitated or minor citizen in these cases can be filed regardless of the request of the interested person or his legal representative. Subjects who have filed an application to protect the interests of other persons occupy the position procedural plaintiff. Not being a party to the case, they enjoy all the procedural rights of the plaintiff, except the right to conclude a settlement agreement. In the person of their representatives, they have the right to familiarize themselves with the case materials, submit petitions, give explanations, present evidence, participate in the examination of evidence, and perform other procedural actions provided for by law.

These procedural plaintiffs are released from the obligation to pay court costs, and a counterclaim cannot be brought against them.

If a public authority, local self-government body, organization or citizen 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 this is contrary to the law or violates the rights and legitimate interests of other persons.

The purpose of participation in civil proceedings of state bodies, local self-government bodies, as well as other bodies and persons participating in the process, is the protection of the rights and legally protected interests of other persons.

Basis for participation - state or public interest in a civil case arising from the duties that are assigned to bodies and persons by virtue of functional powers.

Civil procedural law provides 2 forms of protection of the rights and legally protected interests of other persons:

1) filing a claim or statement in court in defense of any person;

2) giving an opinion on the case, if this is required in connection with the consideration of the case.

16. CONCEPT, PURPOSES AND TYPES OF REPRESENTATION IN CIVIL PROCEEDINGS

Judicial representation - a legal relationship by virtue of which one person (legal representative), within the powers granted to him, performs procedural actions on behalf of and in the interests of another person (represented), as a result of which the latter directly has procedural rights and obligations.

Purpose of representation - rendering certain legal assistance to the represented person in protecting his subjective rights and interests, as well as assisting the court in collecting and examining evidence on the merits of the dispute and in issuing a lawful and reasonable court decision.

Representatives in court can be legally capable persons who have duly executed powers to conduct the case, with the exception of persons (persons) who cannot be representatives in court.

There are several types of judicial representation.

1. legal representation - carried out on behalf of incapacitated and not fully capable citizens, as well as citizens recognized as missing. The basis for the establishment of a representative office are:

1) the citizen’s lack of full legal capacity, as well as a certain degree of relationship between him and the representative, or the appointment of a guardian or trustee for such a citizen;

2) the recognition of a citizen as missing and the transfer of his property to trust management of a person determined by the body of guardianship and guardianship.

Legal representatives may be:

1) parents or adoptive parents in relation to their or adopted minor children; guardians for persons declared incompetent and minors;

2) custodians in respect of persons with limited legal capacity and minors aged 14 to 18;

3) in a case in which a missing person must participate, a trustee of his property.

2. Representation of a lawyer by order of the court.

The basis for the emergence of this representation is the corresponding ruling of the court. In particular, the court is obliged, when preparing a case for trial, to appoint a lawyer as a representative in the absence of a representative from the defendant, whose place of residence is unknown.

3. Contractual (voluntary) representation on behalf of citizens and organizations, including the representation of one of the accomplices on behalf of other accomplices - the basis for the emergence of this type of representation is an appropriate agreement between the representative and the represented.

4. Representation on behalf of the organization - arises on the basis of a direct indication of a federal law, other legal act or constituent documents.

5. Representation on behalf of the state, specially authorized bodies and officials.

On behalf of the Russian Federation, constituent entities of the Russian Federation and municipalities, bodies of state power and bodies of local self-government, respectively, within the limits of their competence, may act in court.

17. POWERS OF JUDICIAL REPRESENTATIVES AND THEIR REGISTRATION

The authority of the representative must be expressed in powers of attorney, issued and executed in accordance with the law.

Powers of attorney issued by citizens can be notarized:

1) the organization in which the principal works or studies;

2) a housing maintenance organization at the place of residence of the principal;

3) the administration of the institution of social protection of the population, in which the principal is located;

4) the administration of the inpatient medical institution where the principal is being treated;

5) 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.

The powers of attorney of persons in places of deprivation of liberty shall be certified by the head of the respective place of deprivation of liberty.

A power of attorney on behalf of an organization is issued signed by its head or another 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 shall be certified warrantissued by the relevant bar association.

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.

Representative endowed with a wide range of powers. The representative has the right to perform all procedural actions on behalf of the represented. The right of a representative to sign a statement of claim, submit 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 powers to another person (transfer), an appeal against a court decision, the presentation of a writ of execution for collection, the receipt of property or money awarded must be specifically stipulated in the power of attorney issued by the represented person.

For a representative to perform a significant part of the procedural actions, a special indication of the principal about this in the power of attorney issued to the representative, as well as in the oral statement of the principal recorded in the minutes of the court session, or in his written statement attached to the case file, is not required. A representative without special authority has the right to get acquainted with the materials of the case, file petitions and object to petitions filed by the persons participating in the case, challenge the composition of the court, present and participate in the examination of evidence, express their opinion and give their arguments on the issues arising in the course of the process. questions.

Separate powers may be exercised by a representative only if the right of the representative to exercise them is directly indicated in the power of attorney issued to him.

18. CONCEPT AND TYPES OF JUDICIAL SCORING

Jurisdiction - assignment of a dispute about the law or other legal matter to the competence of a certain body.

Types of jurisdiction.

1. Exceptional - the case is considered only directly by the court and cannot be resolved on the merits by other bodies. To resolve the dispute by the court, there is no mandatory pre-trial procedure for applying to any other bodies. The exclusive jurisdiction includes disputes on the recognition of authorship of a work of art, on reinstatement at work, on the recognition of an agreement on the transfer of an apartment into the ownership of citizens as invalid, etc.

2. Multiple - means that the legal issue can be resolved in a court of general jurisdiction or an arbitration court, in a labor dispute commission and in court. In some cases, the law gives the applicant the right to choose the body to which he can apply for resolving a legal issue, or leaves the parties themselves to decide on the choice of body, or strictly determines the sequence of applying to various bodies that resolve legal issues.

In this regard, the following types of multiple jurisdiction are distinguished:

1) alternative - a dispute of a legal nature can be legally resolved not only by a court, but also by another non-judicial body (administrative, notarial, arbitration). Appeal to one or another form of protection of the right depends on the discretion of the plaintiff, applicant, other interested party or is determined by agreement of the parties, expressed both in a separate document and in the text of a civil law agreement (contract);

2) contractual - is determined by agreement of the parties. For example, when concluding a transaction, citizens have the right to fix in one of the clauses of the contract that all disputes arising from this contract will be resolved in a specific arbitration court. The participants in the transaction can make a separate arbitration entry about this;

3) conditional - means that for a certain category of disputes or other legal issues, compliance with the preliminary extrajudicial procedure for their consideration acts as a necessary condition for their jurisdiction by the court, i.e., before the trial by the court, the case must be considered by another body;

4) imperative - means that the law establishes a strict sequential passage of the case through the jurisdictional bodies. The jurisdiction of cases is determined by the connection of claims. When combining several interconnected claims, of which some are subordinate to the court, and others to the arbitration court, all claims are subject to consideration in a court of general jurisdiction, if their separation is impossible.

An objective combination of requirements is possible if there is a commonality of their grounds.

If separation of claims is possible, the judge issues a ruling on accepting the claims under the jurisdiction of the court of general jurisdiction and on refusing to accept the claims under the jurisdiction of the arbitration court.

19. CONCEPT AND TYPE OF COUNCILITY

Jurisdiction - a civil law institution, the norms of which regulate the delimitation of competence between specific courts of the judicial system.

Thus, the rules of jurisdiction determine the competence of specific courts of general jurisdiction to consider and resolve civil cases at first instance.

When accepting a statement of claim (statement) and determining that a civil case is under the jurisdiction of the courts of general jurisdiction, the judge must decide which of the courts of the judicial system has jurisdiction over it.

There are the following types of jurisdiction.

1. Generic (subject) jurisdiction - determines the competence of the courts of various parts of the judicial system (different levels) as courts of first instance. All civil cases under the jurisdiction of the courts of general jurisdiction are distributed among the courts of various levels (levels) of the judicial system of the Russian Federation. Some civil cases are referred by law to the jurisdiction of magistrates' courts, others to district (city), etc. The criterion for referring specific civil cases to the jurisdiction of courts of one level or another is the nature (type) of the case, the subject and subject composition of the dispute.

2. Territorial jurisdiction - determines the spatial competence of single-level courts of the judicial system. After it has been clarified which court of which link (level) of the judicial system has jurisdiction over a particular civil case, it is necessary to determine which of the homogeneous courts has jurisdiction over the territory, i.e., to determine the spatial competence of the same-level courts, or the territorial jurisdiction of a particular case.

In turn, territorial jurisdiction divided by:

1) alternative, or jurisdiction at the choice of the plaintiff - is provided for a number of categories of civil cases, the resolution of which by law is within the competence of two or more courts of the same level. The law gives the plaintiff the right to choose between several courts that have jurisdiction over a particular case;

2) exceptional - the essence lies in the fact that for certain categories of cases, the law precisely determines which court is competent to resolve them;

3) negotiable - the parties, by agreement between themselves, can change the territorial jurisdiction for a particular case. It is inadmissible to change the jurisdiction of the court of the subject of the Federation, the Supreme Court of the Russian Federation, as well as the rules of exclusive jurisdiction.

An agreement of the parties to change the territorial jurisdiction for a specific case is possible before the court accepts it for proceedings.

The agreement of the parties on jurisdiction must be expressed in writing. This may be an independent document, which expresses the will of the parties regarding the choice of a court to resolve their civil case. The agreement on jurisdiction may also be included as a separate clause in the substantive agreement (contract) concluded between the parties.

3. Jurisdiction by connection of cases - it is used in the case when several independent claims are combined into one proceeding for joint consideration and resolution.

20. PROCEDURE FOR RESOLUTION OF QUESTIONS ABOUT COMPETITION. CHANGE OF Jurisdiction

The current legislation obliges the court of general jurisdiction, which has accepted the case for its proceedings in compliance with the rules of jurisdiction, to consider it on the merits in all cases, even if during the proceedings the jurisdiction, i.e. the case became subject to the jurisdiction of another court (for example, after the initiation of proceedings in the case, the defendant changed his place of residence or other grounds of jurisdiction on the basis of which the plaintiff brought the claim disappeared).

The procedural law establishes exceptions to this rule, providing for the transfer by the court of a case accepted for its proceedings in compliance with the rules of jurisdiction, for consideration by another court.

Depending on which court decides on the transfer of a civil case, it can be carried out:

1) by a magistrate - to a district court;

2) by the court that accepted the case for proceedings - to another court of the same level;

3) by a higher court from a lower court to another court of the same level.

A change of jurisdiction means that a case accepted in compliance with the rules of jurisdiction by one court is transferred to another court for consideration. for the following reasons:

1) if the defendant, whose place of residence was not known when the claim was filed and the claim was filed at the last known place of residence, files a petition to transfer the case to the court at the place of his actual residence;

2) if both parties file petitions for the consideration of the case at the location of the majority of the evidence;

3) if during the consideration of the case in this court it turned out that it was accepted for proceedings in violation of the rules of jurisdiction;

4) if after the removal of one or several judges or for other reasons, the replacement of judges or the consideration of the case in this court becomes impossible. The transfer of the case in this case is carried out by a higher court.

The transfer of a case from one court to another is formalized by a ruling, which can be appealed privately within 10 days. If the ruling has not been appealed or protested, the case is transferred to another court after a 10-day period after the issuance of the ruling. If a private complaint has been filed against the ruling, the case shall be referred to another court after a ruling is issued by a higher court to leave the complaint unsatisfied. If it is impossible to consider the case in the court or by the judge to whose jurisdiction it is attributed by law, the chairman of the higher court transfers it, at the request of the parties, to a nearby court of the same level.

The transfer of a case from one court to another, i.e., a change in jurisdiction, must be formalized by an appropriate ruling. The parties must be duly notified of the time and place of the ruling in order to ascertain their views on the matter.

The list of grounds for changing jurisdiction established by law is exhaustive and is not subject to broad interpretation.

Disputes about jurisdiction between courts are not allowed. A ruling on the transfer of a case from one court to another, which has entered into legal force, in the cases provided for by the Code of Civil Procedure of the Russian Federation, is mandatory for the court indicated in it.

21. THE CONCEPT OF JUDICIAL EXPENSES. STATE DUTIES

Court expenses - the costs incurred by the persons participating in the case in connection with the consideration and resolution of a civil case.

Legal expenses are intended to:

1) reimburse the costs incurred by the state in connection with the administration of justice;

2) prevent unreasonable appeal to the court, as well as evasion of duties. A person whose claims have not been satisfied shall not be compensated for the expenses incurred by him. If the claims are satisfied, the defendant shall reimburse the plaintiff for the legal expenses incurred by him. Thus, the court costs shall be borne by the person who failed to fulfill his duty in a timely manner or unreasonably applied to the court.

Litigation costs do not prevent low-income citizens from going to court. The law provides for exemption from the payment of state duty in certain categories of cases that significantly affect the interests of citizens, and also provides the court with the opportunity, depending on the property status of a person, to exempt him from court costs, grant a deferment or installment plan for payment of court costs or reduce their size.

Government duty - a fee charged to the state for the consideration and resolution of civil cases.

State duty is paid by:

1) statements of claim;

2) statements in cases of special proceedings and in cases arising from public legal relations;

3) appeals and cassation complaints against court decisions;

4) supervisory appeals in cases that have not been appealed in the appellate or cassation procedures;

5) applications for re-issuance of a copy of a court decision, court order, court rulings, and other documents.

The amount of the state duty is set at the price of the claim.

The price of the claim determined by the amount of money to be recovered or the value of the property being sought. The calculation of the price of a claim in case of periodic payments is determined by the totality of payments, the maximum amount of which is limited.

The following are exempted from paying the state fee in cases considered in courts of general jurisdiction:

1) plaintiffs - in claims for recovery of wages and claims arising from labor relations;

2) plaintiffs - in disputes about authorship, authors - in claims arising from copyright, from the right to an invention, utility model, industrial design, as well as from other intellectual property rights;

3) plaintiffs - on claims for the recovery of alimony;

4) plaintiffs - on claims for compensation for harm caused by injury or other damage to health, as well as the death of the breadwinner;

5) plaintiffs - on claims for compensation for material damage caused by a crime;

6) consumers - on claims related to the violation of their rights;

7) parties - in disputes related to compensation for material damage caused to a citizen by illegal conviction, illegal prosecution, illegal use of detention as a preventive measure or illegal imposition of an administrative penalty in the form of arrest;

8) citizens - when filing applications with the court to establish the adoption of a child;

9) plaintiffs - when considering cases in courts on the protection of the rights and legitimate interests of the child.

22. COSTS RELATED TO THE CASE

Costs include expenses, some of which contribute to the achievement of truth in the case, comprehensive, correct and timely consideration and resolution of the case, while others are of a certain preventive nature, warning citizens to file unfounded claims or deliberately delay the trial.

The list of costs associated with the consideration of the case is established by the Code of Civil Procedure of the Russian Federation and is not exhaustive. However, only a court can recognize certain expenses as costs associated with the consideration of a case.

The costs associated with litigation include:

1) certain amounts to be paid to persons contributing to the administration of justice - witnesses, experts, specialists and translators - compensation for the expenses incurred by them necessary to appear in court and perform the duties assigned to them. They are paid for both travel to the place of appearance in court and return travel to their place of permanent residence;

2) insurance payments for state compulsory insurance of passengers in transport, the cost of pre-sale of travel documents, as well as the cost of using bedding on trains. Expenses for travel by motor transport to the railway station, pier, airfield, if they are located outside the settlement, are paid;

3) the cost of renting a dwelling, payment of daily allowance to witnesses, experts, specialists and translators for the days of summons to court - including travel time, weekends and holidays, as well as the time of a forced stop on the way, confirmed by relevant documents, payment is made in relation to the order established by the legislation on reimbursement of travel expenses;

4) compensation for the loss of time - working citizens-witnesses are provided with the preservation of average earnings at their place of work for all the time they spent in connection with a summons to court;

5) remuneration to witnesses who are not in labor relations for distracting them from their usual activities - is paid in the amount of the daily allowance established for business trips;

6) remuneration for the work of experts and specialists - is made dependent on whether they perform such work within the framework of their official duties as employees of a state organization or not. Remuneration is paid only in the case when the work is not included in the terms of reference of experts and specialists. Payment of remuneration to freelance experts for conducting an examination, to specialists for participating in litigation is made in accordance with the concluded agreement;

7) the minimum cost of travel between the place of permanent residence and the place of appearance is reimbursed to witnesses, experts and interpreters, in case of failure to present travel documents;

8) services of an interpreter - also relate to expenses, but these services are paid at the expense of the relevant budget. In this case, special attention should be paid to the fact that the payment for the services of an interpreter is carried out only at the expense of budgetary funds, the parties do not participate in bearing these costs.

23. ALLOCATION OF COSTS

Under distribution of court costs means the determination of the party from which, after the resolution of the case, court costs will be collected.

According to the current legislation, the party in whose favor the court decision was made, the court awards reimbursement on the other side of all the court costs incurred in the case. If the claim is partially satisfied, 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.

If the plaintiff is released from court costs, but the defendant is not released, then when the claims are satisfied, the court costs are recovered from the defendant to the state. If the claim is denied, the defendant does not bear the costs.

The same rule applies to the distribution of court costs incurred by the parties in connection with the conduct of the case in the appellate and cassation instances.

In the event that a higher court, without remitting the case for a new trial, changes the decision of the lower court or adopts a new decision, it accordingly changes the distribution of court costs. If in these cases the court of higher instance did not change the decision of the court regarding the distribution of court costs, this issue must be decided by the court of first instance upon the application of the person concerned.

If the plaintiff refuses the claim, the defendant's legal expenses incurred by him shall not be reimbursed. The plaintiff shall reimburse the defendant for the costs incurred by him in connection with the conduct of the case. If the plaintiff does not support his claims due to the voluntary satisfaction of them by the defendant after the filing of a claim, all court expenses incurred by the plaintiff in the case, including the costs of paying for the services of a representative, shall be recovered from the defendant at the request of the plaintiff.

When concluding a settlement agreement, the parties must provide for the procedure for the distribution of court costs, including the costs of paying for the services of representatives.

If the parties at the conclusion of the settlement agreement did not provide for such a procedure for the distribution of court costs, the court decides this issue.

Court costs are borne not only by the parties, but also by other persons participating in the case.

Third parties with independent claims and third parties without independent claims pay the state duty when they file appeals and cassation, and, in appropriate cases, supervisory complaints. They also have the right to apply to the court for a deferment, installment payment of the state duty or a reduction in its size, if their property situation does not allow them to pay the state duty in the generally established manner, and the court has the right to satisfy such a petition.

In addition, any person participating in the case and filing a petition to call witnesses, appoint an examination, is obliged to pre-pay the necessary funds. The persons participating in the case shall bear the costs of paying for the services of a representative, postage, travel and accommodation costs in connection with the appearance in court, and other costs related to the consideration of the case.

24. PROCEDURAL TERMS

procedural term - a certain period of time, which is established by a court or law, during which any procedural action must be performed or a part of the proceedings in the case must be completed.

Purpose of establishing a procedural time limit - fast and efficient consideration of a civil case. The legislator establishes a time limit so that no persons by their actions could deliberately delay the consideration of the case.

Features of the flow of procedural deadlines:

1) procedural deadlines are determined by the date and an indication of the event that must inevitably occur in accordance with this date;

2) the course of a procedural term, calculated in years, months or days, begins on the next day after the date or occurrence of the event that determines its beginning;

3) a procedural term calculated in years expires on the respective month and day of the last year of the term. A term calculated in months shall expire on the corresponding day of the last month of the term. If the end of a term calculated in months falls on a month that does not have a corresponding date, the term expires on the last day of that month;

4) if the last day of the procedural time limit falls on a non-working day, the expiration day of the time period shall be deemed to be the working day following it;

5) a procedural action for which a procedural time limit has been established may be performed before 24:XNUMX of the last day of the time limit;

6) if the procedural action must be performed directly in a court or other organization, the time limit expires at the hour when the working day ends in this court or organization according to the established rules or the corresponding operations are terminated. Complaints and documents filed after the expiration of the procedural deadlines, unless a petition is filed for the restoration of the missed procedural deadlines, are not considered by the court and are returned to the person to whom they were filed;

7) the course of all procedural terms that have not expired shall be suspended simultaneously with the suspension of proceedings on the case. From the date of resumption of proceedings on the case, the course of procedural terms continues;

8) procedural time limits set by the court may be extended by the court;

9) persons who have missed the procedural period established by federal law for reasons recognized by the court as valid, the missed period may be restored;

10) an application for the restoration of the missed procedural term shall be submitted to the court in which the procedural action was to be performed and considered in a court session. Simultaneously with the submission of an application for the restoration of the missed procedural period, the necessary procedural action must be performed (a complaint is filed, documents are submitted), in respect of which the deadline has been missed. An appeal may be filed against a court ruling on the restoration or refusal to restore the missed procedural term.

25. THE CONCEPT OF A CLAIM. SUBJECT, BASIS AND CONTENT OF THE CLAIM. TYPES OF CLAIMS

Claim in civil proceedings - applying to the court of an interested person with a demand to protect the violated or disputed subjective right or legally protected interest by resolving the dispute.

The plaintiff may ask the court:

1) to force the defendant to perform a certain action (for example, to compensate for losses, pay a specific amount of money, transfer certain property) or to refrain from some action (for example, from actions that pollute a neighboring area);

2) recognition of the existence or, on the contrary, the absence of any legal relationship, subjective right or obligation;

3) on the change or termination of the legal relationship between the plaintiff and the defendant, or, as it is customary to say in theory, on the transformation of the legal relationship.

Subject of the claim - this is the substantive claim that the plaintiff makes against the defendant and on which the court asks the court to make a decision. When changing the subject of the claim, the plaintiff replaces the original substantive claim with a new claim. The subject of the claim may be an interest protected by law, as well as a legal relationship in general.

Grounds for claim - the circumstance that allows you to file a claim. The basis of the claim usually consists not of one fact, but of some of their totality, corresponding to the hypothesis of the norm of substantive law and called the actual composition. The plaintiff must prove the cause of the claim.

Claims are divided into 3 types:

1) claims for award;

2) claims for recognition;

3) claims for changing or terminating legal relations (transformative claims). In an action for award, the plaintiff requires the court to order the defendant to do or refrain from doing a certain act.

The grounds for an award claim are:

1) facts with which the emergence of the right itself is associated (for example, the activity of an artist in painting a picture, the composition of a literary work by its author, etc.);

2) the facts with which the emergence of the right to claim is connected: the onset of a term, a suspensive condition, a violation of the right.

Contents of the claim for award expressed in the plaintiff's demand to the court to compel the defendant to commit certain actions; it is expressed in the pleading clause of such a statement: to collect wages, reinstate at work, evict, etc.

Recognition claim - a requirement aimed at confirming by the court the existence or absence of a certain legal relationship.

The subject of the claim about recognition there can be a legal relationship both from its active side (subjective right), and from the passive side (duty).

Grounds for a claim for recognition are the facts with which the plaintiff connects the emergence of a disputed legal relationship, and the facts as a result of which the disputed legal relationship, according to the plaintiff, could not arise.

transformative a lawsuit aimed at changing or terminating an existing legal relationship with the defendant is called. A transformative claim is aimed at issuing a court decision, which should introduce something new into the existing legal relationship between the parties.

26. RIGHT TO SUBMIT

In order for an interested person to apply for judicial protection of violated rights and legitimate interests, he must have the right to file a claim (the right to claim).

Right to claim in the procedural sense - the subjective procedural right of the person concerned to apply to the court for the protection of subjective material rights and interests protected by law as a result of their alleged violation or contestation.

The right to sue is the right to justice in a specific civil case.

Subjects of the right to bring a claim are citizens and organizations of Russia, as well as foreign citizens, foreign organizations and enterprises, stateless persons.

The right to bring an action arises in connection with the prerequisites.

Prerequisites for the right to sue - circumstances, with the presence or absence of which the law connects the emergence of the subjective right of a certain person to bring a claim in a particular case.

There are the following preconditions:

1) civil procedural legal capacity;

2) jurisdiction of the case to the court;

3) the absence of a valid court decision issued in an identical case;

4) legal interest. The subject of the right to file a claim can only be persons acting in defense of their right or legally protected interest, as well as persons applying for judicial protection of the rights and interests of other persons in cases where such authority is granted to them by law. Under legal interest one should understand the legally based expectation from the process of a certain legal result;

5) the absence of an arbitral tribunal decision, binding on the parties and adopted in a dispute between the same parties, on the same subject and on the same grounds, except in cases where the court refused to issue a writ of execution for the enforcement of the arbitral tribunal's decision. For certain categories of civil cases, the law provides for a special prerequisite for the right to sue.

Special premise - such circumstances, which must be observed along with the general prerequisites. For example, for some disputes arising from labor relations, it is necessary to first apply to the labor dispute commission. The right to bring an action in such cases arises only when the appeal to the labor dispute committee has not produced the desired result.

Compliance with the claims procedure for filing claims in disputes arising from rail transport is also a special prerequisite.

The absence of a positive or the presence of a negative premise means that the persons do not have the right to bring a claim. At the same time, the absence of the interested person's right to file a claim, which became clear at the time of filing the statement of claim, entails a refusal to accept the statement of claim and a refusal to initiate proceedings on the case. If the absence of the right to bring a claim becomes clear in the course of the proceedings, the proceedings on it are subject to termination.

27. STATEMENT OF CLAIM AND PROCEDURE FOR FILING A CLAIM

The initial stage of legal proceedings is the filing statement of claim, which must meet all legal requirements:

1) is filed with the court in writing;

2) the statement of claim must contain:

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

b) 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;

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

d) what is the violation or threat of violation of the rights, freedoms or legitimate interests of the plaintiff and his claim;

e) the circumstances on which the plaintiff bases his claims and the evidence supporting these circumstances;

f) the value of the claim, if it is subject to assessment, as well as the calculation of the amounts recovered or disputed;

g) information on compliance with the pre-trial procedure for applying to the defendant, if this is established by federal law or provided for by an agreement between the parties;

h) a list of documents attached to the application. The application may contain telephone numbers, fax numbers, e-mail addresses of the plaintiff, his representative, the defendant, other information relevant to the consideration and resolution of the case, as well as the petitions of the plaintiff;

3) in the statement of claim presented 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 an indefinite circle of persons, it must be indicated what exactly their interests are, what right has been violated, and it must also contain a reference to a law or other regulatory legal act providing for ways to protect these interests;

4) the statement of claim is signed by the plaintiff or his representative if he has the authority to sign the statement and present it to the court;

5) the following documents are attached to the statement of claim:

a) its copies in accordance with the number of defendants and third parties;

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

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

d) 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;

e) the text of the published normative legal act in case of its contestation;

f) evidence confirming the implementation of the mandatory pre-trial procedure for the settlement of the dispute, if such a procedure is provided for by federal law or an agreement;

g) 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.

After meeting all the requirements for the form and content of the application, the judge, within 5 days from the date of receipt of the statement of claim by the court, is obliged to consider the issue of its acceptance for proceedings. After the expiration of this period, the judge issues a ruling on accepting the statement of claim and initiating a case or on refusing to accept the claim.

28. SECURITY FOR A CLAIM

Securing the claim - one of the guarantees for the protection of the rights of citizens and legal entities through the application of legislatively fixed measures that contribute to the future execution of a court decision.

Grounds for securing a claim - statements of persons participating in the case. An application for securing a claim is considered on the day of its receipt by the court without notifying the defendant, other persons participating in the case. The judge or court shall issue a ruling on taking measures to secure the claim. On the basis of a court ruling on securing a claim, the judge or court issues a writ of execution to the plaintiff and sends a copy of the court ruling to the defendant.

Actions to secure a claim may include:

1) seizure of property belonging to the defendant and located in his or other persons’ possession;

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.

In case of violation of the prohibitions established by the court, the guilty persons are subject to a fine in the amount of up to 10 minimum wages established by federal law. 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.

Measures to secure the claim must be commensurate with the requirement stated by the plaintiff.

At the request of the person participating in the case, it is allowed to replace some measures to secure the claim with others.

When securing a claim for the recovery of a sum of money, the defendant, instead of the measures taken by the court to secure the claim, shall have the right to deposit the amount claimed by the claimant into the account of the court.

At the same time, the securing of a claim may be canceled by the same judge or court at the request of the defendant or at the initiative of the judge or court. The issue of canceling the securing of the claim shall be resolved at the court session. The persons participating in the case are notified of the time and place of the court session, however, their failure to appear is not an obstacle to considering the issue of canceling the securing of the claim.

If the claim is denied, the measures taken to secure the claim are retained until the court decision enters into legal force. However, the judge or the court, simultaneously with the adoption of the court decision or after its adoption, may issue a court ruling on the cancellation of measures to secure the claim. If the claim is satisfied, the measures taken to ensure it remain in effect until the execution of the court decision.

The judge or court shall immediately notify the appropriate state bodies or local self-government bodies that register property or rights to it, their restrictions (encumbrances), transfer and termination of the cancellation of measures to secure a claim.

A private complaint may be filed against all court rulings on securing a claim.

29. CONCEPT AND CLASSIFICATION OF JUDICIAL EVIDENCE

Forensic Evidence - procedural means of proof provided for and regulated by law (explanations of the parties and third parties, testimony of witnesses, written and material evidence, audio and video recordings, expert opinions, as well as information about the circumstances of the case that are obtained from them).

The court accepts only those evidence that are important for the consideration and resolution of the case.

Judicial evidence consists of two closely interrelated elements: information about the facts (content) and means of proof (procedural form).

Facts can be recognized as evidence only if the law is observed, i.e. these facts must be obtained, formalized and investigated in compliance with the law. This guarantees the accuracy of the information received. Evidence obtained in violation of the law has no legal force and cannot be used as the basis for a court decision.

Violation of the law means:

1) obtaining information about facts from means of proof not provided for by law;

2) non-observance of the procedural procedure for obtaining information about facts in a court session;

3) involvement in the process of evidence obtained illegally.

The evidence is divided into:

1) original and derivative.

initial are primary evidence derivatives - Evidence that reproduces the content of another evidence. Between a derivative proof and the fact to which it bears witness there is always at least one more proof;

2) direct and indirect - the division is based on whether the evidence makes it possible to draw only one definite conclusion about the desired fact - about its presence or absence - or several probable conclusions.

Direct is called a proof which, even taken in isolation, makes it possible to draw only one definite conclusion about the sought-for fact.

Indirect evidence, taken separately, provides the basis not for one definite, but for several conjectural conclusions, several versions regarding the sought fact. Therefore, indirect evidence alone is not enough to draw a conclusion about the sought-after fact. If indirect evidence is taken not separately, but in connection with the rest of the evidence in the case, then, by comparing them, one can discard unfounded versions and come to one definite conclusion;

3) division by source - personal and material. The division is carried out depending on whether the sources of information are people or things.

К personal evidence include explanations of the parties and third parties, testimony of witnesses, expert opinions; to real - various kinds of things.

The court is obliged to show impartiality and objectivity in the study of the evidence presented, without giving preference in advance to one or another evidence. Another thing is that in the course of the process certain evidence may not be accepted by the court after their examination.

30. SUBJECT AND MEANS OF EVIDENCE

Subject - a set of legal facts, on the establishment of which the decision of the case on the merits depends.

All legal facts included in the subject are subject to proof.

Item includes:

1) facts of material and legal significance (subject of proof);

2) facts of procedural and legal significance (facts on which the resolution of procedural issues depends).

Means of judicial evidence.

1. Explanations of the parties and third parties - the parties and third parties come forward with explanations of the situation that has arisen and substantiate their own requirements and objections.

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 the explanations of the other party.

Information reported about the circumstances of the case, the law recognizes as an independent means of proof.

Explanations of the parties and third parties can have 4 varieties: affirmation, recognition, objection and denial.

2. Witness testimony. Witness - a legally uninterested participant in civil proceedings who knows the facts of the case under consideration, about which he is obliged to testify in court.

3. Written 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 otherwise establish the authenticity of a document.

4. Physical evidence - items that, by their appearance, properties, location or other features, can serve as a means of establishing circumstances that are important for the consideration and resolution of the case.

5. expert opinion. Forensic examination - this is a procedural action consisting of conducting research and giving an opinion by an expert on issues requiring special knowledge in the field of science, technology, art or craft, which are put before the expert by the court in order to establish the circumstances to be proved in a particular case.

6. Audio and video recording as a means of proof is also an independent means of proof. At the same time, the legislator did not give the concept of this means of proof.

7. Other means of proof.

The list of means of proof is exhaustive, and no other means may be lawful in civil proceedings. At the same time, it should be noted that an exhaustive list is established only for initial evidence, derivative evidence may be different and will be considered by the court if they were obtained without violating the law.

31. PROCESS OF EVIDENCE

Judicial evidence - a certain form of judicial knowledge, which is a procedural activity of the court and the persons participating in the case, clearly and in detail regulated by law, to study the actual circumstances through evidence in order to legally and reasonably resolve a legal conflict.

Judicial evidence is a complex process and is divided into certain stages.

1. Indication of interested parties to evidence - concerns the means of proof, which the court will carefully study in the future. This action occurs when the parties submit a statement of claim, they must make reference to evidence confirming the circumstances set forth.

At this stage, no evidentiary material is provided, but only the probable amount of evidence that is related to the circumstances of the case, which can confirm their truth, is indicated.

2. Presentation and disclosure of evidence.

Performance consists in the transfer of evidentiary material to the court for examination. According to the law, the materials are submitted by the parties and other persons participating in the case.

Disclosure allows the judiciary and the parties to familiarize themselves with the evidence of the opponent in a legal dispute in advance.

3. Fixation and examination of the available evidence, i.e. procedural consolidation of the received material, as well as the extraction by the court and the persons participating in the case from the evidence of such information, which is aimed at confirming or refuting the circumstances of the incident.

There are various ways to examine evidence:

1) obtaining explanations from the parties and third parties;

2) interrogation of witnesses and experts;

3) familiarization and disclosure of written evidence;

4) inspection of physical evidence;

5) playback of audio and video recordings.

4. Evaluation of evidence - includes the entire evidentiary procedure, all previous phases.

The law established certain requirements for the production of this stage of proof. The court evaluates the evidence according to its inner conviction, based on a comprehensive, complete, objective and direct examination of the evidence available 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.

Relativity - the importance of evidence for the correct consideration and resolution of the case.

Admissibility of evidence - confirmation of the circumstances of the case by means of proof clearly defined in the law and no others. At the same time, all stages of this process are carried out taking into account one goal - a complete, competent and fair consideration of the case.

When evaluating documents or other written evidence, the court is obliged, taking into account other evidence, to make sure that such a document or other written evidence comes from an authority authorized to present this type of evidence, signed by a person who has the right to affix the document with a signature.

32. ESSENCE, SIGNIFICANCE AND OBJECTIVES OF PREPARING A CASE FOR A JUDICIAL PROCEEDING

Accurate and steadfast compliance with the requirements of the law on proper preparation of civil cases for trial is one of the main conditions for their correct and timely resolution.

Preparation stage - an independent stage of the trial, including a set of procedural actions carried out to ensure the correct and timely consideration and resolution of the case.

Goal stages of preparing cases for trial - ensuring its correct and timely consideration and resolution. Preparation of cases for trial, regardless of the volume and complexity of the procedural actions performed, is an obligatory stage of the process. This requirement was established by the legislator due to the fact that this stage performs very important tasks that contribute to a competent, complete and fair consideration of the case and the adoption of a decision.

The preparation of the case as a stage of the process begins from the moment the judge issues the appropriate ruling and continues until the ruling is issued on the appointment of the case for trial at the court session. This stage is carried out with the participation of the parties, other persons, their representatives, and the entire process is managed by the judge alone.

The preparation of the case for trial can take place only after the initiation of a civil case, that is, after the acceptance of the application.

The tasks of preparing a case for trial are:

1) clarification of factual circumstances relevant for the correct resolution of the case;

2) determination of the law and legal relations of the parties, which should be followed in resolving the case;

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

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

5) resolution of the issue of reconciliation of the parties.

Stage value:

1) exact fulfillment of the requirements of the law on the preparation of cases for trial is aimed at preventing judicial red tape and bureaucracy in legal proceedings;

2) ensuring the correct and competent consideration of the case;

3) speeding up the dispute resolution process;

4) facilitating the subsequent consideration of the case. At this stage of the trial, there is a clarification of the circumstances that, in future consideration, may be necessary to make a decision on the dispute.

Clarification of factual circumstancesimportant for the correct resolution of the case - the activities of the persons participating in the case and the court to determine the subject of proof, i.e., a set of facts of legal significance that need to be proven to the parties in order for the court to correctly apply the rules of substantive law, determine rights and obligations of the parties. If the parties are mistaken regarding the totality of the facts subject to proof, then the judge, based on the norm or norms of substantive law to be applied, explains to them what facts are important in the case and by whom they are subject to proof.

The main significance of this stage lies in the preliminary clarification.

33. PROCEEDING ACTIONS TO PREPARE THE CASE FOR THE COURT PROCEEDINGS

Allocate the following groups of preparatory actions:

1) ensuring completeness of information about the circumstances of the case, for which the judge carries out the following actions:

a) questioning the plaintiff on the merits of the stated requirements - necessary to clarify the plaintiff’s demands and make them more specific;

b) interrogation of the defendant on the circumstances of the case - takes place with the same purpose as calling the plaintiff. But questioning the plaintiff, the defendant or their representatives on the circumstances of the case is a mandatory procedural action;

c) the judge sends the defendant a copy of the application and the documents attached to it substantiating the claims of the plaintiff;

2) formation of the evidence base for resolving the case - in connection with the obligation to collect evidence, which is assigned to the parties, when questioning the plaintiff and the defendant, the judge finds out what evidence the parties have, may offer to provide additional evidence within a certain period, so that both parties got acquainted not only with the requirements of the opponent, but also with the evidence base provided by the other side.

If necessary, the court assists the persons participating in the case in collecting evidence by performing the following actions:

a) the request by the court, at the request of the parties, of written or material evidence, the issuance of a request for evidence to an interested person;

b) obtaining evidence by sending a court order if it is necessary to carry out a procedural action in another district or city;

c) appointment of expertise, experts to conduct it;

3) determination of the composition of the participants in the process, for which the judge performs the following actions:

a) resolves the issue of co-plaintiffs and co-defendants joining the case. If a claim is not filed by all persons who presumably have the right to claim, the court notifies such persons of the accepted claim and explains to them their right to join the case as co-plaintiffs;

b) resolves the issue of third parties joining the case without independent claims regarding the subject of the dispute;

c) replaces the wrong defendant with the consent of the plaintiff;

d) resolves the issue of summoning witnesses, specialists, an interpreter to the court session appointed to consider the case on the merits;

4) explanatory and instructional actions of the judge:

a) explanation to the parties of their procedural rights and obligations, which determine the procedure and scope of judicial protection at the stage of preparing the case for trial;

b) Simultaneously with the direction or delivery to the defendant of a copy of the statement of claim and the documents attached to it, the judge proposes to present evidence in support of his objections within the time period established by him. At the same time, the judge explains that the failure by the defendant to present evidence and objections within the time period established by the judge does not prevent the consideration of the case based on the evidence available in the case.

Not all actions performed at this stage are preparatory in nature.

Some actions are of a different nature, such as actions aimed at concluding a settlement agreement or interim actions.

34. APPOINTMENT OF THE CASE FOR HEARING. JUDICIAL NOTIFICATIONS AND SUMMONS

The judge, having recognized the case as prepared, issues ruling on the appointment of a case for trial at the court session. This ruling should be made by the judge only when the case is recognized as prepared, which implies the fulfillment of the tasks of the preparation stage and the performance of all necessary preparatory actions.

The ruling on the appointment of the case for trial shall indicate on notifying the parties and other persons participating in the case, on the time and place of the consideration of the case at the court session, on summoning other participants in the process (representatives, witnesses, expert, specialist, translator).

The persons participating in the case, as well as witnesses, experts, specialists and translators, shall be notified or summoned to court by registered letter with a return receipt, a court summons with a return receipt, a telephone message or a telegram, by facsimile, or using other means of communication and delivery, ensuring the fixation of a court notice or summons and its delivery to the addressee.

To the persons participating in the case, court notices and summons must be served in such a way that the said persons have sufficient time to prepare for the case and appear in court in a timely manner.

The court notice addressed to the person participating in the case shall be sent to the address indicated by the person participating in the case or his representative. In the event that a citizen does not actually live at the indicated address, a notice can be sent to his place of work.

A court notice addressed to an organization shall be sent to the place of its location.

Summons and other court notices contain:

1) name and address of the court;

2) an indication of the time and place of the court session;

3) the name of the addressee - the person being notified or summoned to court;

4) an indication in the capacity of whom the addressee is being notified or summoned;

5) the name of the case on which the notification or summoning of the addressee is carried out.

Summons or other court notices addressed to persons participating in the case are invited to present to the court all the evidence they have in the case, and also indicate the consequences of failure to present evidence and failure to appear in court of the notified or summoned persons, explain the obligation to inform the court of the reasons for non-appearance.

Simultaneously with the court summons or other court notice addressed to the defendant, the judge sends a copy of the statement of claim, and with the court summons or other court notice addressed to the plaintiff, a copy of the defendant's written explanations, if the explanations were received by the court.

Summons and other court notices delivered by mail or by the person to whom the judge instructs to deliver them.

Delivery time to the addressee is fixed by the method established in postal organizations or on a document to be returned to the court.

A court summons addressed to a citizen is handed over to him personally against a signature on the back of the summons to be returned to the court or to an adult living with him.

35. SIGNIFICANCE OF JUDICIAL PROCEEDINGS. PROCEDURE OF THE COURT SESSION

Trial - the main stage of the civil process. At the court session, common to civil proceedings are carried out targets and goals: correct and timely consideration and resolution of a civil case on the merits with the issuance of a lawful and reasoned decision.

Significance of litigation:

1) at this stage, justice is administered in a specific case;

2) the outcome of the case as a whole depends on the correctness of this stage;

3) at this stage, all the principles of civil procedural law manifest themselves;

4) at this stage, all the rights of the parties are exercised;

5) at this stage, the entire set of tasks resolved during the trial is performed;

6) at this stage the dispute comes to resolution;

7) when making a decision, the court contributes to the strengthening of law and order, the prevention of offenses, forming a respectful attitude towards the rights, honor and dignity of citizens.

The procedure for conducting a court session has a complex structure and consists of the following stages:

1) preparatory part - the following actions take place:

a) opening of the court session - 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;

b) checking the presence of participants in the process;

c) explaining to the interpreter his rights and obligations;

d) removal of witnesses from the courtroom;

e) announcement of the composition of the court and explanation of the right of self-withdrawal and challenge;

f) explanation to the persons participating in the case of their procedural rights and obligations;

g) permission by the court of petitions of persons participating in the case;

h) explaining to the expert and specialist their rights and obligations, as well as warning the expert about criminal liability for giving a knowingly false opinion, about which a signature is taken from him, which is attached to the minutes of the court session;

2) trial on the merits - the following sequence of actions:

a) the chairman delivers a report;

b) 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;

c) the court establishes the sequence of examination of evidence;

d) direct examination of evidence;

e) completion of the consideration of the case on the merits. After examining all the evidence, the presiding judge gives the floor to the prosecutor, a representative of a state body or a representative of a local self-government body, asks other persons participating in the case, their representatives, whether they wish to make additional explanations. In the absence of such statements, the presiding judge shall declare the consideration of the case on the merits completed;

3) judicial debate - consist of speeches of persons participating in the case, their representatives. In judicial debate, the plaintiff, his representative, is the first to speak, then the defendant, his representative;

4) adjudication:

a) removal of the court to make a decision

b) announcement of the court decision.

36. POSTPONED PROCEEDINGS

Postponement of the trial - transferring the consideration of the case on the merits to another court session.

Grounds for adjournment of proceedings - various circumstances preventing the consideration of the case on the merits.

The adjournment of the trial of the case is allowed if the court recognizes the consideration of the case as impossible for the following reasons:

1) failure of any of the participants in the process to appear;

2) filing a counterclaim;

3) the need to present or demand additional evidence;

4) involvement of other persons in the case;

5) performance of other procedural actions.

This list is not exhaustive.

The court shall decide on the adjournment of the court session definition, which is not subject to appeal. In the ruling on postponing the trial of the case, the court must set a date for a new court hearing, measures that must be taken to ensure the possibility of considering the case at the next court hearing. If the trial of a case is adjourned, the date is set taking into account the time required to call the participants in the process or request evidence, which is announced to the persons who appear against a signature. Persons who failed to appear and persons newly invited to participate in the process are notified of the time and place of the new court hearing. If the trial of a case is postponed, the time limits for consideration and resolution of the case are not suspended.

If the trial of the case is adjourned, the court has the right to interrogate the witnesses who have appeared, if the parties are present at the hearing. A second call of these witnesses to a new court session is allowed only if necessary.

A new trial of the case after its adjournment, in accordance with the principle of continuity and immediacy, begins from the beginning, i.e. from the preparatory part of the court session.

The Code of Civil Procedure of the Russian Federation contains a provision that is a kind of exception to these principles: it is allowed continuation of the trial without repeating the previously given explanations of all participants in the process under the following conditions:

1) the parties do not insist on repeating these explanations;

2) the parties are familiar with the materials of the case, including the explanations given earlier by the participants in the proceedings;

3) the composition of the court has not changed.

In this case, the court provides the participants in the process with the opportunity to confirm the previously given explanations without repeating them, to supplement them, to ask additional questions. Consideration of the case after its adjournment in this manner is a right, not an obligation of the court.

The adjournment of the trial of a case should be distinguished from a break in the court session and suspension of the proceedings.

Postponement of the trial - rescheduling the trial for another period, during which it is possible to consider other cases. Therefore, as a rule, after the adjournment, the proceedings begin from the beginning. When a break is announced, the consideration of the case continues from the moment when it was interrupted.

Suspension of proceedings differs on the grounds, legal consequences, terms, possibility of appeal.

37. SUSPENSION OF THE PROCEEDINGS

Suspension of proceedings - temporary suspension of the execution of procedural actions due to circumstances beyond the control of the court and participants in the process.

The court may suspend the proceedings on the case both at the request of the persons participating in the case, and on its own initiative.

Application for suspension of production may be filed during the trial and before the trial (when preparing the case for trial).

Ruling on suspension of proceedings may be made at a preliminary hearing.

The legislator provided the grounds for the court is obliged to suspend consideration of the case, as well as the grounds on which the court has the right suspend the proceedings. In the science of civil procedure, these grounds are called binding и optional.

The court is obliged to suspend the proceedings in the case of:

1) the death of a citizen, if the disputed legal relationship allows for legal succession, or the reorganization of a legal entity who 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.

The court may, at the request of the persons participating in the case, or on its own initiative, suspend the proceedings in the case if:

1) the party is in a medical institution;

2) search for the defendant;

3) appointment by the court of expertise;

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. Suspension of production is issued by court ruling. A private complaint may be filed against a court decision to suspend proceedings in a case.

The proceedings on the case are resumed after the elimination of the circumstances that caused its suspension, on the basis of an application from the persons participating in the case, or at the initiative of the court.

From the date of resumption of proceedings on the case, the time limits for consideration and resolution of the case are resumed, and procedural actions may also be performed.

The court shall issue a ruling on the resumption of proceedings on the case, which must indicate the circumstances indicating that the grounds for suspending the proceedings have disappeared, as well as the time and place of the court session, about which the persons participating in the case and other participants in the process are notified.

38. CLOSING THE CASE WITHOUT JUDGING

A civil case may end without a decision. Ending the process without making a decision is possible in two forms.

1. Termination of proceedings on the case (Articles 220-221 of the Code of Civil Procedure of the Russian Federation).

2. Leaving the application without consideration (Articles 222-223 of the Code of Civil Procedure of the Russian Federation).

The court terminates the proceedings in the case if:

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

2) the application has been submitted by a person who does not have such a right;

3) 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;

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

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

6) 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 refused to issue a writ of execution for the enforcement of the arbitral tribunal's decision;

7) after 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 is completed.

Proceedings on the case are terminated by a court ruling, which indicates that re-appeal to the court in a dispute between the same parties, on the same subject and on the same grounds is not allowed.

The court leaves the application without consideration if:

1) the plaintiff has not complied with the pre-trial procedure for resolving the dispute established by federal law for this category of cases or provided for by the agreement of the parties;

2) the application has been submitted by an incompetent person;

3) the application is signed or filed by a person who does not have the authority to sign it or file a claim;

4) in the proceedings of this or another court, arbitration court there is a case initiated earlier on a dispute between the same parties, on the same subject and on the same grounds;

5) there is an agreement of the parties on the transfer of this dispute for consideration and resolution of the arbitration court and from the defendant, before the start of the consideration of the case on the merits, an objection was received regarding the consideration and resolution of the dispute in court;

6) the plaintiff, who did not ask for the case to be heard in his absence, did not appear in court on a second summons, and the defendant does not demand that the case be heard on the merits.

The list of grounds for leaving the application without consideration is exhaustive.

Proceedings on the case in case of leaving the application without consideration ends with a court ruling, in which the court is obliged to indicate the circumstances that impede the consideration of the case and explain the ways to eliminate them.

After the elimination of the circumstances that served as the basis for leaving the application without consideration, the interested person has the right to apply to the court again with an application in the general manner.

39. MINUTES OF THE COURT SESSION

Protocol - the main procedural document drawn up during each court session, as well as when each separate procedural action is performed outside the court session.

The minutes of a court session or an individual procedural action performed outside a court session must reflect all essential information about the proceedings of the case or the performance of a separate procedural action.

The minutes of the court session indicate:

1) date and place of the court hearing;

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 contents of the conclusions of the prosecutor and representatives of state bodies and local 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.

The protocol is drawn up in writing. To ensure the completeness of the minutes, the court may use shorthand, audio recording and other technical means.

The protocol indicates the use by the secretary of the court session of audio recording and other technical means to record the course of the court session. The carrier of the audio recording shall be attached to the minutes of the court session.

The protocol 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 a separate procedural action - no later than the next day after the day it was performed.

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.

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 in writing comments on the protocol indicating the inaccuracies and incompleteness made in it.

The remarks, the correctness of which was certified by the judge, as well as the judge's decision to reject the remarks, together with the remarks themselves on the protocol, shall be attached to the file.

40. JUDGMENT. JUDICIAL DETERMINATION

In the process of civil proceedings, various procedural decisions are made.

Judgment - decision of the court of first instance, by which the case is resolved on the merits. The decision of the court is made in the deliberation room.

The court decision consists of introductory, descriptive, motivational and resolutive parts.

В introductory part 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 are indicated.

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

В motivational part the circumstances of the case established by the court are indicated; 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.

Operative part The court decision contains the conclusions of the court 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.

Judicial determination - judicial decisions of the court of first instance, by which the case is not resolved on the merits.

Court rulings are issued in the deliberation room, and when resolving simple issues, the court or judge may issue rulings without leaving the deliberation room. Such determinations shall be recorded in the minutes of the court session.

Court rulings are announced immediately after they are issued.

The court ruling must include:

1) date and place 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 laws by which the court was guided;

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

Court order - a law enforcement act in the form of a judge's decision issued on the creditor's application for the recovery of sums of money or for the recovery of movable property from the debtor.

The court order states:

1) production number and date 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 money to be collected, or the designation of 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.

41. ESSENCE OF JUDGMENT, ITS TYPES

The court's decision - a written act of the court (judge), in which an authoritative judgment is expressed regarding the resolution of both substantive and procedural issues.

Judgment in a civil case - a court decision, which confirms the presence or absence of a disputed right, a disputed legal relationship, as a result of which it turns from a disputed into an indisputable one, subject, if necessary, to enforcement. It is from the moment the court decision is made and it enters into force that the possibility of the enforcement of a subjective right, confirmed by the court, is realized.

The decision of the court is issued in the name of the Russian Federation.

The decision of the court is made in the deliberation room, where only the judge considering the case or the judges who are members of the court on the case can be present. The presence of other persons in the meeting room is not allowed.

The court decision must be legal и justified. The court bases its decision only on the evidence that was examined at the trial.

Interested parties go to court when there is a violation or contestation of their subjective rights or legally protected interests.

The court issues a judgment as a result of consideration of a civil case on the basis of substantive law and legal facts established by it during the consideration of the case in a court session.

Judgment is made on the merits of the claims.

When making a decision, the court thereby resolves the substantive dispute of the parties.

The essence of the judgment manifests itself in the impact on material legal relations and is expressed in the fact that the decision is the result of considering a dispute about violated rights and interests and implements these rights or interests, thereby protecting them.

The decision of the court is binding on everyone and is subject to obligatory observance and execution.

However, in some cases, a court decision does not have a direct impact on specific material legal relations of subjects of law, but is limited only to a statement of facts and legal conditions.

At the same time, the court decision does not create a rule of law, but only applies, confirms the presence or absence, transformation of the legal relationship, realizing, if necessary, the sanction of the legal norm.

The court decision acts as an act of protection of individual rights and legally protected interests of the disputing parties.

An essential feature of a judicial decision is its imperious and binding character.

A court decision in all cases is a regulator of the behavior of subjects of material legal relations.

A judgment is an individual act, that is, it is applied once and to a specific circle of persons.

The court decision convincingly shows the real effect of legal norms that reveal the richness of their content in application to specific life circumstances.

Exist the following types of decisions of the court of the Russian Federation:

1) main decision;

2) optional decision: a court decision on the award of property or its value.

42. REQUIREMENTS FOR A JUDGMENT

The most important requirements that a court decision must meet are legality and validity.

A decision is legal if:

1) judges, when making decisions, were independent and obeyed only the Constitution of the Russian Federation and federal law;

2) the decision was made on the basis of the Constitution, federal constitutional laws in force on the territory of the Russian Federation, international treaties of the Russian Federation, federal laws and other regulatory legal acts;

3) in case of a conflict of legal norms, the court has made a decision in accordance with the legal provisions that have the highest legal force;

4) the court, in the absence of legal norms regulating disputed legal relations, applied the law regulating similar relations (an analogy of the law), and in the absence of such a law, the court made a decision based on the general meaning of the legislation, and primarily the Constitution of the Russian Federation;

5) the court, in the event of a conflict between legislation and international treaties, applied the rules established by the said treaties ratified by the Russian Federation;

6) the court correctly applied the norms of the current procedural law regulating the procedure not only for making a decision, but also for preparing the case for trial, for considering the case on the merits;

7) the court, in the absence of a rule of procedural law governing the relations that arose in the course of the proceedings, applied the rule governing similar relations (analogy of law), and in the absence of such a rule, the court acted on the basis of the principles of the administration of justice in the Russian Federation (analogy of law).

A court decision cannot be recognized as legal if:

1) the court applied a law that was not subject to application;

2) the court did not apply the applicable law;

3) the court misinterpreted the law.

justified a decision should be recognized when it reflects the facts relevant to the case, confirmed by evidence verified by the court that meets the requirements of the law on the relevance and admissibility of evidence, or well-known circumstances that do not need to be proven, and also when it contains exhaustive conclusions of the court, arising from established facts. The conclusions of the court on the actual circumstances of the case must correspond to the actual relationship between the parties.

The decision of the court may be considered justified if:

1) the court will fully determine the range of facts sought that are essential to the case;

2) the conclusions of the court on the presence or absence of legal facts essential for resolving the case will be based on the evidence examined in the court session.

Solution certainty - the issue of the content of the rights and obligations of the parties in connection with the contentious material legal relationship that is the subject of consideration by the court must be clearly resolved.

Unconditional decision - the operative part of the decision should not contain indications of the possibility of execution of the judgment, depending on the occurrence of any conditions.

Solution completeness - when making a decision, the court must take into account all the circumstances of the case and give an answer to the entire dispute, and not just part of it.

43. ELIMINATION OF FAULTS IN THE JUDICIAL DECISION BY THE COURT MADE IT

The law provides several ways to correct mistakes made in a judicial decision.

The court that made the decision is given the opportunity:

1) supplement your decision;

2) explain it;

3) make corrections to it without changing the content in cases strictly limited by law.

Additional solution - issued if the requirements for a court decision are not met. The court decision must contain a final and exhaustive answer to the stated requirements, as well as the issue of the distribution of court costs.

The court that made the decision on the case may, on its own initiative or at the request of the persons participating in the case, issue an additional court decision if:

1) on any claim for which the persons participating in the case presented evidence and gave explanations, but a court decision was not made on it;

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. The issue of making an additional decision by the court may be raised before the entry into force of the court decision. An additional decision is made by the court after consideration of the said issue in a court session and may be appealed. The persons participating in the case are notified of the time and place of the court session, however, their failure to appear is not an obstacle to the consideration and resolution of the issue of making an additional court decision.

If the solution is not clear the court that accepted it, at the request of the persons participating in the case, the bailiff has the right to explain the court decision without changing its content. An explanation of the court decision is allowed if it has not been enforced and the period during which the court decision can be enforced has not expired.

The issue of clarification of the decision of the court is considered in the court session. The persons participating in the case are notified of the time and place of the court session, however, their failure to appear is not an obstacle to the consideration and resolution of the issue of clarification of the court decision.

The court may, on its own initiative or at the request of the persons participating in the case, correct clerical errors or obvious arithmetic errors in the court decision, i.e., such inaccuracies that affect the possibility of implementing the decision or its justice, for example, distortion of the surname, name, patronymic of the parties, composition of the court. Arithmetic errors consist of incorrect calculation of amounts of money to be collected, shares in the right of common ownership of buildings and other objects.

The issue of making corrections to the court decision is considered at the court session. The persons participating in the case are notified of the time and place of the court session, however, their failure to appear is not an obstacle to resolving the issue of making corrections to the court decision.

A private complaint may be filed against all court rulings aimed at supplementing or changing a court decision.

44. ENTRY OF A COURT DECISION INTO LEGAL FORCE

The court decision enters into legal force after the expiration of the period for appeal or cassation appeal, if it has not been appealed (part 1 of article 209 of the Code of Civil Procedure of the Russian Federation). After the entry into force of the court decision, the parties, other persons participating in the case, their legal successors cannot re-state the same claims in court on the same basis, as well as challenge the facts and legal relations established by the court in another civil process (part 2 of Art. 209 Code of Civil Procedure of the Russian Federation).

The decision of the court is enforced after it enters into force, with the exception of cases of immediate execution, in the manner prescribed by federal law (Article 210 of the Code of Civil Procedure of the Russian Federation). For example, in the case of filing an appeal, the decision of the magistrate comes into force after consideration of this complaint by the district court, if the appealed court decision is not canceled. If the decision of the district court is canceled or the decision of the justice of the peace is changed and a new decision is made, it enters into force immediately (part 1 of article 209 of the Code of Civil Procedure of the Russian Federation). The court may, at the request of the plaintiff, apply the decision to immediate execution if, due to special circumstances, the delay in its execution may lead to significant damage to the claimant or execution may be impossible (Part 1, Article 212 of the Code of Civil Procedure of the Russian Federation).

A court order or a court decision on: the recovery of alimony is subject to immediate execution; payment of wages to the employee within three months; reinstatement at work; inclusion of a citizen of the Russian Federation in the list of voters, referendum participants (Article 211 of the Code of Civil Procedure of the Russian Federation).

A decision that has entered into legal force cannot be reviewed on appeal or cassation. This is possible only in case of restoration of the deadline for appeal, which was missed for good reasons, but in this case the decision loses its legal force.

Upon entry into force, the decision becomes:

1) mandatory for all participants in the process. A court decision that has entered into legal force is binding and is subject to strict execution by all officials and citizens. The binding nature of a court decision that has entered into legal force means that all bodies and officials do not have the right to change or cancel a court decision or make a decision that would contradict the court decision that has entered into legal force. In turn, the binding nature of a court decision is determined by the generally binding nature of the law on the basis of which the decision was made;

2) exceptional, i.e., the decision that has entered into legal force establishes the impossibility of applying to the court with a statement on an identical dispute;

3) prejudicial. The property of the prejudice of a decision that has entered into legal force is that the facts established by it are binding on the court when considering another case involving the same persons and their successors, they are not proven again and are not subject to challenge. If new persons are involved in another process, they have the right to challenge the established facts, since the legal force of the decision does not apply to them.

45. DETERMINATION OF THE COURT OF FIRST INSTANCE

define - rulings issued by the court of first instance (collectively or individually) on all issues arising in connection with the trial of a civil case.

Determinations may be issued at any stage of the proceedings in the court of first instance.

Classification of definitions.

1. By subjects:

1) sole judges - rendered by one judge;

2) collegiate - are taken out at collegiate consideration.

2. In order of decision and execution:

1) definitions in the form of a separate procedural document - consists of introductory, descriptive, motivational and operative parts, which must indicate:

a) the date and place of the ruling;

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

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

d) the issue on which the determination is made;

e) the motives on which the court came to its conclusions, and reference to the laws by which the court was guided;

f) a court order;

g) the procedure and term for appealing a court ruling, if it is subject to appeal;

2) rulings recorded in the minutes of the court session - are issued when resolving simple issues. The ruling may be issued by the court after discussion on the spot without being removed to the deliberation room. In this case, the minutes of the court session indicate the issue on which the ruling is made, the motives on which the court came to its conclusions, and a reference to the law is given.

3. By content:

1) preparatory - such determinations that resolve private procedural issues that arise throughout the proceedings, with the goal of preparing the normal development of the process and ensuring the adoption of a lawful and justified judicial decision. Such determinations are made by a single judge;

2) final rulings - complete the proceedings in the court of first instance. The basis for making final rulings may be the will of the parties (waiver of the claim, settlement agreement). The final ones should also include other rulings that end the proceedings in the court of first instance (for example, the ruling on termination of proceedings due to the lack of jurisdiction of the case to the court of general jurisdiction). In case of violation of the law, the court has the right to issue private definition and send it to the relevant organizations or relevant officials, who are obliged to report within a month on the measures they have taken to eliminate these violations. In case of failure to report on the measures taken, guilty officials may be subject to a fine of up to 10 minimum wages established by federal law. The imposition of a fine does not release the relevant officials from the obligation to report on the measures taken on the basis of a private court ruling.

If, during the consideration of the 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.

46. CONCEPT AND SIGNIFICANCE OF CORRESPONDENCE PROCEEDINGS

Correspondence proceedings - the procedure for consideration and resolution of a specific civil case in the event of the absence of the defendant, duly notified of the time and place of the court session, who did not report good reasons for the absence and did not ask for the consideration of the case in his absence, if the plaintiff does not object to this, with the issuance of a decision, called absentee.

At the same time, it should be noted that the term "simplified procedure" is inapplicable to the procedure for considering a case in absentia proceedings. Trial in absentia under a simplified scheme is a characteristic feature of English and American civil proceedings, where no evidence is examined, and the trial is reduced to the announcement of a decision against the non-appearing party.

The law establishes the following conditions for absentee proceedings:

1) failure of the defendant to appear at the court hearing;

2) the defendant must be duly notified of the time and place of the court session;

3) the defendant did not report valid reasons for the failure to appear and did not ask for the consideration of the case in his absence;

4) the consent of the plaintiff - if the plaintiff, who appeared at the court session, does not agree to the consideration of the case in absentia in the absence of the defendant, the court postpones the consideration of the case and sends the defendant a notice of the time and place of the new court session.

The procedure for considering and resolving a case in absentia proceedings generally follows the general rules of court proceedings, but with some features:

1) the court examines evidence presented not only by the parties, but also by other persons participating in the case. Thus, in the case of the participation in the case of third parties, the prosecutor, state bodies, local government bodies, organizations and citizens defending the violated or contested rights, freedoms and legally protected interests of other persons, the court also examines the evidence presented by these persons, since without this a decision a legal and reasoned decision is impossible;

2) if the defendant has not submitted written explanations and evidence, the court has the right to make a decision in absentia on the basis of evidence presented by the plaintiff and other persons participating in the case;

3) consideration of the case in the order of proceedings in absentia limits the limits of exercising the procedural rights granted to the plaintiff. The plaintiff is not entitled to change the subject or basis of the claim or increase the amount of claims.

The value of this institution:

1) the institution of absentee judgment is aimed, on the one hand, at expanding judicial protection of the subjective rights of citizens and organizations, their freedom, and on the other, at suppressing the possibility of the defendant’s abuse of subjective procedural rights and establishing adverse consequences for their abuse;

2) is an additional implementation of the competitiveness principle;

3) increases the level of responsibility of the parties for their actions (inaction);

4) speed up the resolution of the dispute;

5) reduce the number of cases considered under the general procedure.

47. CONTENT AND EFFECTIVENESS OF A DECISION IN ABSOLUTELY

A decision in absentia shall be issued in accordance with the general rules provided for by law.

The court decision consists of introductory, descriptive, motivational and resolutive parts.

В 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.

В motivational 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 in the reasoning part of the court decision, only the recognition of the claim and its acceptance by the court can be indicated.

In case of refusal 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.

When making a decision in absentia, the court must take into account some features:

1) the title of the decision must contain the word “in absentia”;

2) in the descriptive part, it must be indicated that the case was considered in the absence of the defendant according to the rules of Ch. 22 Code of Civil Procedure of the Russian Federation in compliance with the above conditions;

3) if the defendant fails to provide written explanations for the statement of claim, the descriptive part shall indicate only the arguments of the plaintiff;

4) in the operative part of the decision in absentia, along with the general appeal procedure provided for both parties, the court must indicate the time period and procedure for filing an application to cancel such a decision. This right is granted only to the defendant. This provision is an important guarantee of the timely exercise by the parties of the right to appeal or cassation appeal, and the defendant, in addition, the right to file an application for the cancellation of a default decision.

If the case, at the request of the plaintiff, was considered in his absence, then a copy of the court decision is sent to him in the same way as to the defendant within 3 days from the date of the decision. In this case, one should keep in mind the general rules for making a judicial decision. So, in accordance with Art. 199 of the Code of Civil Procedure of the Russian Federation, the operative part of the court decision is announced at the same court session in which the proceedings of the case ended, and the drawing up of a reasoned decision may be postponed for up to 5 days. The period for sending copies of a default decision to the parties is calculated from the date the court draws up a reasoned decision.

48. PROTECTION OF THE RIGHTS AND INTERESTS OF THE DEFENDANT IN CORRESPONDENCE PROCEEDINGS

In order to protect the rights and interests of the defendant, the legislator established the right to apply for the annulment of this decisionand right of appeal and cassation.

The defendant has the right to file with the court that adopted the decision in absentia, an application for the cancellation of this decision of the court within 7 days from the date of delivery of a copy of this decision to him.

The decision in absentia may also be appealed by the parties in cassation, the decision of the justice of the peace in absentia - in the appeal procedure within 10 days after the expiration of the term for the defendant to file an application to cancel this court decision, and if such an application is filed, - within 10 days from date of issuance of the court ruling on the refusal to satisfy this application.

The defendant must first file an application for the annulment of the decision, and then has the right to appeal the decision.

Right to appeal (cassation) appeal arises after the expiration of the time limit for filing such an application.

If the defendant does not file an application for the annulment of the absentee decision, and after the expiration of the period for its filing, appeals against the decision in the appeal (cassation) procedure, the possibility of using the simplified procedure is lost.

The law provides for certain requirements for the content of an application for the annulment of a court decision in absentia:

1) an application to cancel a court decision in absentia must contain:

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

b) the name of the person submitting the application;

c) circumstances testifying 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;

d) the request of the person submitting the application;

e) a list of materials attached to the application;

2) an application for the annulment of a court decision in absentia - is signed by the defendant or, if authorized, by his representative and submitted to the court with copies, the number of which corresponds to the number of persons participating in the case;

3) an application for the annulment of a court decision in absentia - is not subject to payment of the state fee. Thus, the law actually puts the defendant in a privileged position compared to the plaintiff: he has the right not only to two methods of appeal, but also to a privilege in paying the state fee when choosing a simplified appeal procedure. If the defects are corrected within the period set by the judge, the application shall be considered filed on the day of the initial presentation to the court. Otherwise, the application is considered not submitted and returned to the defendant.

The Code of Civil Procedure of the Russian Federation does not provide grounds for the return of an application for the cancellation of an absentee decision. Apparently, if the application is filed in violation of the rules of jurisdiction or by a person who does not have the right to do so, or after the expiration of the period established by law, if a petition for its restoration is not filed, the court must return the application.

An application that meets the requirements of the law is accepted by the judge for consideration.

49. CONCEPT AND SIGNIFICANCE OF MANDATORY PROCEEDINGS

Order production - regulated by the norms of civil procedural law, the activities of the court outside the framework of the trial for a simplified resolution of cases not caused by a dispute about the law, the scope of which is clearly defined by law.

Significance of Writ Proceedings:

1) increases the efficiency of judicial protection of subjective rights and the efficiency of execution;

2) ensures the availability of judicial protection to citizens (a lower state fee is paid here than in lawsuit proceedings);

3) unloads the courts from those cases that do not need a detailed procedure for consideration;

4) instills in citizens a sense of increased responsibility for the obligations they have assumed;

5) strengthens the preventive function of law;

6) is a quick way to activate state coercion, the potential force of which is inherent in the norm of substantive law;

7) increase control over penalties in indisputable cases, the indisputability of which seems obvious;

8) implements the goal of reducing the burden on the courts;

9) is a guarantee of the constitutional right to judicial protection.

The court order should not be confused with such rulings of the court of first instance, such as a decision and a ruling, issued as a result of resolving substantive claims and procedural issues on the merits.

The writ is:

1) one of the types of court decisions;

2) an act issued by a special state body, which expresses its power judgments and expressions of will;

3) a decision, the issuance of which is subject to certain conditions, precisely defined by law;

4) an act of protection of civil rights and legally protected interests;

5) a procedural document.

The grounds for initiating writ proceedings in accordance with the Code of Civil Procedure of the Russian Federation are the following types of legal acts:

1) a claim based on a notarized transaction;

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

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

4) the stated claim for the recovery of alimony for minor children, not related to the establishment of paternity, challenging paternity (maternity) or the need to involve other interested parties;

5) the declared demand for the recovery of arrears from citizens on taxes, fees and other obligatory payments;

6) the stated claim for the recovery of wages accrued but not paid to the employee;

7) the demand declared 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.

50. ORDER PROCEDURE

Court order - a court decision 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 in accordance with legal requirements.

Writ proceedings are initiated by filing an application, which is filed with the court according to the general rules of cognizance and is paid with a state fee in the amount of 50% of the rate established for statements of claim.

This application must be of a certain form and content. An application for a court order is submitted in writing.

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 recoverer, 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 exactor's claim;

6) list of attached documents.

In the case of claiming movable property, the application must indicate the value of this property.

An application for issuance of a court order shall be signed by the recoverer or his representative having the appropriate authority. The application submitted by the representative must be accompanied by a document certifying his authority.

After filing an application, the judge does one of two things:

1) refuses to accept the application. In addition, the judge refuses to accept the application in cases established by law when:

a) a claim is made that is not provided for by law;

b) the place of residence or location of the debtor is outside the Russian Federation;

c) documents confirming the stated requirement are not submitted;

d) the existence of a dispute about the right is seen from the application and submitted documents;

e) the claimed claim has not been paid with state duty.

On refusal to accept an application for issuing a court order, the judge shall issue a ruling within 3 days from the date of receipt of the application by the court;

2) accepts the application, after which a court order is issued. It must be issued within 5 days from the date of receipt of the application for the issuance of a court order to the court. A court order is issued without trial and without summoning the parties to hear their explanations.

After the order is issued, the next stage begins - notifying the debtor of the issuance of the court order, i.e. the judge sends a copy of the court order to the debtor, who, within 10 days from the date of receipt of the order, has the right to file objections regarding its execution. If the debtor raises objections regarding its execution within the prescribed period, the judge cancels the court order. In the ruling on the cancellation of the court order, the judge explains to the exactor that the claim he has filed may be brought in the course of action proceedings. Copies of the court ruling on the cancellation of the court order shall be sent to the parties no later than 3 days after the date of its issuance.

If there are no objections, then a court order is issued.

51. PROCEDURE FOR ISSUANCE AND CONTENT OF THE JUDICIAL ORDER

The debtor, after receiving the court order, within 10 days from the date of delivery, has the right to file objections regarding its execution.

These objections should not be about the essence of the stated substantive legal requirements, but about the execution of the act of the judiciary. At the same time, the legislator did not stipulate in any way the moment of checking the receipt by the debtor of a copy of the court order, although it is connected with the course of a 10-day period.

If no objections are received from the debtor within the prescribed period, the judge shall issue to the recoverer a second copy of the court order, certified by the official seal of the court, for presenting it for execution. At the request of the claimant, the court order may be sent by the court for execution to the bailiff, and in order for the court order to be sent by the court for execution to the bailiff, only the request of the person in whose favor the order was issued is necessary. This right of the creditor is due to the fact that cases of dishonest behavior of the debtor are often revealed, for example, concealment of property, as a result of which the execution of the order becomes impossible.

This right is a guarantee of the fulfillment of a legal requirement and a court order. In case of collection of the state fee from the debtor to the income of the relevant budget, on the basis of a court order, a writ of execution is issued, which is certified by the official seal of the court and sent by the court for execution in this part to the bailiff.

The court order states:

1) production number and date 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 money to be collected, or the designation of 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.

The court order for the recovery of alimony for minor children, in addition to this information, indicates 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 alimony was awarded, the amount of payments collected monthly from the debtor, and the period for their collection .

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.

In case of loss of a court order, the person in whose favor it was issued has the right to apply to the justice of the peace with an application for the issuance of a duplicate.

52. APPEALS

Appeal proceedings - revision by the district court of decisions and rulings of the justice of the peace that have not entered into legal force by re-examining the case on the merits with the study and evaluation of evidence, establishing the actual circumstances of the case and issuing a decision or ruling.

The decisions of justices of the peace may be appealed on appeal by the parties and other persons participating in the case to the appropriate district court through a justice of the peace or separately. On the decision of the justice of the peace, the prosecutor participating in the case may bring appeal presentation.

Appeal, presentation may be filed within 10 days from the date of the decision of the justice of the peace in the final form.

The District Judge, after reviewing the complaint, may:

1) leave the appeal or presentation without progress if it does not comply with the law, but at the same time assign the person who filed the appeal or presentation a period for correcting the shortcomings;

2) to return the appeal, presentation in case of:

a) failure to comply with the instructions of the justice of the peace contained in the court ruling on leaving the complaint, presentation without movement within the prescribed period;

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

c) at the request of the person who filed the complaint, an appeal presentation;

3) accept it for production.

After accepting the complaint, the judge of the district court considers the case according to the general rules of legal proceedings.

The appellate process consists of:

1) preparatory stage - the judge notifies the persons participating in the case of the time and place of the court session and takes other actions to prepare the case for trial;

2) stage of the case on the merits - case materials and evidence are examined. The court has the right to establish new facts and examine new evidence;

3) decision-making stage - the decision of the district court is adopted in the form of an appeal decision and replaces in whole or in part the decision of the justice of the peace.

The decision of the court of appeal comes into force from the date of its adoption.

The court of appeal, when considering an appeal or presentation, has the right to:

1) leave the decision of the magistrate unchanged, the complaint, presentation without satisfaction;

2) change the decision of the justice of the peace or cancel it and adopt a new decision. This is possible if the solution:

a) circumstances relevant to the case are incorrectly identified;

b) the circumstances established by the justice of the peace that are relevant to the case have not been proved;

c) the conclusions of the justice of the peace set out in the court decision do not correspond to the circumstances of the case;

d) the rules of law have been violated or incorrectly applied;

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.

53. PROCEDURE FOR CONSIDERATION OF CASES ARISING FROM ADMINISTRATIVE LEGAL RELATIONS

Proceedings in cases arising from administrative-legal relations - a type of civil legal proceedings for the consideration and resolution of cases arising from administrative legal relations.

In cases arising from administrative-legal relations, a dispute arises between authorities (officials) and citizens.

Courts, when considering cases of this category, check the legality of the actions of administrative bodies. Consideration of such cases is carried out according to the general rules of civil proceedings, taking into account the exceptions and additions established by law.

The following cases are included in this litigation:

1) on the protection of citizens’ electoral rights;

2) on appealing against the actions of officials, on the application of an administrative penalty;

3) on contesting the legality of normative legal acts, with the exception of acts, the verification of the constitutionality of which is within the competence of the Constitutional Court;

4) on appealing decisions and actions (inaction) of state authorities, public associations, officials of state bodies.

Features of the consideration of cases arising from administrative-legal relations:

1) cases arising from administrative-legal relations are considered by a single judge. Collegial consideration of cases in this category may be provided for by federal law;

2) cases of this category cannot be considered in the absence of the defendant;

3) when considering and resolving cases, the court is not bound by the grounds and arguments of the stated claims;

4) when considering and resolving cases, the court may recognize as obligatory the presence at the court session of a representative of a public authority, a local self-government body or an official;

5) the court proceeds with the consideration of the case on the basis of an application of the interested person, which must indicate which decisions, actions (inaction) must be recognized as illegal, what rights and freedoms of the person are violated by these decisions, actions (inaction);

6) the appeal of the interested person to a higher authority or to an official is not a prerequisite for filing an application with the court;

7) the obligation to prove the circumstances that served as the basis for the adoption of a normative legal act, its legality or the legality of contested decisions, actions (inaction) of state authorities, local governments, officials, state and municipal employees, is assigned to the body that adopted the normative legal act or , respectively, the bodies and persons who made the contested decision or committed the contested action (inaction).

The complaint is subject to consideration by the court within 10 days. The applicant and the administrative body or official are duly notified of the time and place of the trial.

A court decision in a case arising from administrative-legal relations must be lawful and justified and meet the requirements of the law.

54. CONCEPT AND ESSENCE OF SPECIAL PRODUCTION. TYPES OF CASES OF SPECIAL PROCEEDINGS

special production - the procedure for consideration and resolution of cases provided for by federal laws, regulated by the norms of civil procedural legislation, characterized by the absence of a dispute about the right and the parties with mutually exclusive property or personal non-property interests.

This proceeding is used when there is no dispute about the right, but the applicant is legally interested in judicial confirmation of the fact, elimination of the uncertainty of the legal status of a citizen or property, restoration of rights according to lost documents, etc.

The following cases are considered in special proceedings:

1) on establishing 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:

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

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

This list is not exhaustive. The procedure for considering and resolving cases of special proceedings is based on the general rules of action proceedings, but due to the specifics of cases This type of production has a number of features:

1) the procedural means of initiating special proceedings is not a lawsuit, but a statement, since the applicant does not have substantive claims against other persons;

2) in a special proceeding there are no such institutions as refusal of a claim, recognition of a claim, conclusion of a settlement agreement, change in the subject or grounds for a claim, increase or decrease in the amount of a claim, going beyond the stated claim; the commission of procedural actions aimed at securing a claim, filing a counterclaim, etc. is excluded;

3) the applicant and the persons concerned are the persons participating in cases of special proceedings;

4) a limited number of persons have the right to apply to the court in these cases;

5) the emergence of a dispute on the law under the jurisdiction of the courts prevents the consideration of the case in the order of special proceedings and serves as a basis for leaving the application without consideration. After leaving the application without consideration, the interested person has the right to apply to the court for resolution of the dispute that has arisen in the course of action proceedings.

55. ESTABLISHMENT OF LEGAL FACTS

In the order of special proceedings, the court establishes the facts on which the emergence, change, termination of personal or property rights of citizens, organizations depend.

The court hears cases on:

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 legislator has established certain conditions that are necessary to establish facts of legal significance. The court establishes facts of legal significance only if it is impossible for the applicant to otherwise obtain the appropriate documents certifying these facts, or if it is impossible to restore the lost documents.

In order to start proceedings, it is necessary to submit an application for the establishment of a fact of legal significance by the person concerned. The application is submitted to the court at the place of residence of the applicant, with the exception of the application for establishing the fact of ownership and use of real estate, which is filed with the court at the location of the real estate. The application must indicate for what purpose the applicant needs to establish this fact, and evidence must be provided confirming the impossibility of obtaining the proper documents by the applicant or the impossibility of restoring the lost documents.

In the course of preparation for the trial of the case, the judge is obliged to determine the circle of persons interested in the case and summon them to the court session.

Interested persons have the right present evidence in support of the validity or invalidity of the fact-finding statement being considered by the court, participate in their research, appeal against the decision, as well as perform other procedural actions.

Based on the evidence examined at the court session, the court makes a decision confirming the existence (absence) of the established fact.

A court decision on an application for the establishment of a fact of legal significance 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.

56. RECOGNIZING A CITIZEN MISSING AND DECLARED DEAD

Recognition of a citizen as missing and declaring a citizen dead is possible only by a court decision.

Grounds for declaring missing - absence in the place of his residence of information about the place of his stay within 1 year.

Grounds for declaring a citizen dead - the absence in the place of his residence of information about the place of his stay for 5 years.

In the event that a citizen has gone missing under circumstances threatening death or giving reason to assume his death from a certain accident, he may be declared dead within 6 months.

A serviceman or other citizen missing in connection with hostilities may be declared dead not earlier than two years after the end of hostilities.

Apply for recognition interested persons - persons for whom the recognition of a citizen as missing or the declaration of a citizen as dead may entail legal consequences.

The case is considered at the place of residence or location of the person concerned.

Applications for recognizing a citizen as missing or for declaring a citizen dead are considered in the manner of special proceedings by a single judge.

An application to recognize a citizen as missing or to declare a citizen as deceased must indicate, for what purpose the applicant needs to recognize the citizen as missing or declare him dead, and the circumstances confirming the unknown absence of the citizen, or the circumstances that threatened the missing person with death or giving reason to assume his death from a certain accident must be set out. In relation to military personnel or other citizens missing in connection with hostilities, the application indicates the day the hostilities ended.

The persons involved in cases of recognizing a citizen as missing or declaring a citizen dead are the applicant and interested persons. These cases are considered with the obligatory participation of the prosecutor.

After examining all the circumstances of the case, the judge makes a decision. Recognition of a citizen as missing entails certain legal consequences: disabled family members have the right to a pension, divorce at the request of a spouse is carried out in the civil registry offices, and the consent of the missing child to adopt his child is not required.

The decision to declare a citizen dead is the basis for registration by the registry office of his death.

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.

57. RECOGNIZING A CITIZEN AS LIMITEDLY CAPABLE OR INcapacitated

Civil capacity - the ability of a citizen by his actions to acquire and exercise civil rights, create civic obligations for himself and fulfill them. It occurs in full with the onset of adulthood, that is, upon reaching the age of 18.

The legal capacity of a citizen can only be limited by a court.

A citizen who, due to a mental disorder, cannot understand the meaning of his actions or control them, may be declared legally incompetent by a court.

The legal capacity of a citizen is limited by a court decision if he abuses alcohol or drugs and, as a result, puts his family in a difficult financial situation.

Consequence of incapacitation It is expressed in the deprivation by the court of a citizen of the right to make any transactions, except for small household ones, without the consent of the trustee. The trustee receives the right to directly receive wages, pensions and other types of income, i.e., guardianship is established over a citizen with limited legal capacity.

The consequence of declaring a citizen incompetent is the establishment of guardianship over him and the performance of all transactions on his behalf by the guardian.

The law establishes an exhaustive list of persons and organizations that have the right to apply to the court with an appropriate application.

A case of restricting a citizen’s legal capacity can be initiated on the basis of an application from members of his family, a guardianship and trusteeship authority, a psychiatric or psychoneurological institution.

The spouse, adult children, parents, other close relatives (brothers, sisters), disabled dependents living with him and leading a common household, as well as competent state bodies have the right to apply for recognition of a citizen as incapacitated due to a mental disorder.

The application for the restriction of the legal capacity of a citizen must set outThere are circumstances that indicate that a citizen who abuses alcohol or drugs puts his family in a difficult financial situation.

An application for declaring a citizen incompetent must contain circumstances indicating that a citizen has a mental disorder, as a result of which he cannot understand the meaning of his actions or control them.

The judge, in order to prepare for the trial of a case on recognizing a citizen as incompetent, in the presence of sufficient data on the mental disorder of the citizen, appoints to determine his mental state forensic psychiatric examination.

After that, all the materials of the case are examined and a decision is made on the basis of this.

The decision of the court, by which a citizen is limited in legal capacity, is the basis for the appointment of a trustee by the body of guardianship and guardianship. The decision of the court, by which the citizen is declared incompetent, is the basis for the appointment of a guardian by the body of guardianship and guardianship.

58. RECOGNIZING PROPERTY AS OWNERLESS

Property is recognized as ownerless only by a court decision. The recognition process begins with the filing of an application for recognition of a movable as ownerless. An application for recognition of a movable thing as ownerless shall be submitted to the court by the person who has taken possession of it, at the place of residence or location of the applicant.

An ownerless thing is a thing that has no owner or the owner of which is unknown, or a thing for which the owner has renounced the right of ownership.

We are talking about an abandoned thing, the value of which clearly exceeds 5 times the minimum wage and is not related to waste (scrap metal, defective products, smelter from an alloy, etc.).

Special rules are provided for acquiring ownership of a find, stray animals, treasure. The owner becomes the person who has taken actual possession of the ownerless thing. Applying to the court with a request to recognize these things as ownerless entails refusal to accept the application, since there is a different procedure for acquiring them into ownership.

In all other cases, an out-of-court procedure for acquiring ownership of ownerless things applies.

The application to the court must be preceded by registration of ownerless real estate to the institution of justice for the state registration of rights to real estate, on the territory of which it is located.

The application for recognition of a movable thing as ownerless must indicate, which thing is subject to recognition as ownerless, its main features must be described, as well as evidence indicating the owner’s renunciation of ownership of it, and evidence indicating that the applicant has taken possession of the thing.

As evidence in such cases can be used acts of inventory of property and its preliminary assessment, certificates from housing maintenance organizations, municipal services authorities, tax authorities, as well as registration authorities, written statements about the renunciation of ownership of an item, messages from address bureaus about the absence of the owner of the item, etc.

After accepting the application, the judge, in order to prepare the case for trial, finds out which persons can provide information about the ownership of property, and also requests information about it from the relevant organizations.

The case is considered with the participation of the applicant and interested persons. If in the course of the proceedings the owner of the property is identified and claims his rights to it, the court leaves the application without consideration due to the dispute that has arisen about the right to be considered in a lawsuit.

Having established that the property does not have an owner, or its owner is unknown, or the owner has abandoned this property, the court makes a decision on recognizing the movable thing as ownerless and transferring it to the ownership of the applicant.

In the case when, after the issuance and entry into force of the court decision, the owner of the thing is found out, the issue of its recovery from the new owners must be resolved by filing an independent claim.

59. RESTORATION OF RIGHTS ON LOST BEARER DOCUMENTS (CALL PROCEEDINGS)

Restoration of rights on lost bearer documents is carried out by means of a court decision.

Documents on which the rights can be restored by the court:

1) bank savings books to bearer;

2) safe certificates of acceptance for storage of bonds of state loans;

3) order securities.

Loss of a document - not only the complete absence of the document, but also the loss of signs of payment due to its improper storage or for other reasons.

In the event of the loss of a document, a person who has lost a bearer document or an order valuable document may apply to the court at the location of the institution that issued the document with an application to recognize the lost document as invalid and to restore rights under it.

In an application for invalidating a lost bearer or order security and for restoring rights thereon, the signs of the lost document, the name of the person who issued it, as well as the circumstances under which the document was lost, the applicant's request to prohibit the person who issued the document from making payments or issuing on it.

The judge who accepted the application shall issue ruling on prohibition to the person who issued the document to make payments or issuance on it, as well as to publish it in a local newspaper at the expense of the applicant. These actions are performed in order to offer the holder of the document, the loss of which is declared, before the expiration of the 3-month period, to file a claim with the court about their rights to this document. If an application is received from the holder of the document, the court leaves the application filed by the person who lost the document without consideration. In addition, in this case, the court establishes a period during which the person who issued the document is prohibited from making payments and issuance under the document.

The applicant has the right to file a claim against the holder of the document for the recovery of the document, and the holder of the document has the right to recover from the applicant the losses caused by prohibitive measures. Such consequences occur on the condition that the holder of the document has filed an application with the court about his rights to the document, substantiated the request contained in the application, and submitted the original document to the court.

If, after a three-month period from the date of publication, no application is received from the holder of the document, the court satisfies the request of the applicant who has lost the document and makes a decision to recognize the lost document as invalid. This decision is the basis for issuing a new document to the applicant to replace the invalid one.

For some reason, the holder of the document may not declare in a timely manner his rights to a bearer document in respect of which a court decision has been made to declare it invalid. In this case, after the entry into force of the decision, the holder of the document may bring a claim for unjustified acquisition or saving of property against the person who is recognized as having the right to receive a new document to replace the lost one.

60. CASES ON THE ESTABLISHMENT OF THE ADOPTION (ADOPTION) OF CHILDREN

Adoption or adoption of a child made by the court at the request of those who wish.

Application for adoption or adoption filed by citizens of the Russian Federation wishing to adopt or adopt a child to the district court at the place of residence or location of the adopted child. Citizens of the Russian Federation permanently residing outside the territory of the Russian Federation, foreign citizens or stateless persons can also adopt (adopt) a child, but these persons apply for adoption, respectively, to the Supreme Court of the Republic, the regional court, the court of the federal city , the court of the autonomous region and the court of the autonomous district at the place of residence or location of the adopted child. This requirement is aimed at protecting the rights of the child.

In addition, the law has established strict requirements for the content of an application for the adoption or adoption of a child, especially for foreign citizens, stateless persons. This contributes to the full investigation of the possibility of adoption or adoption of a child, as well as his protection.

If the application meets the requirements of the law, the court begins preparing the case. When preparing the case for trial, the judge obliges the guardianship and guardianship authorities at the place of residence or location of the adopted child to submit to the court an opinion on the validity and compliance of the adoption with the interests of the adopted child.

Thereafter adoption application pending in closed session with compulsory participation adoptive parents (adoptive parent), a representative of the guardianship and guardianship body, a prosecutor, a child who has reached the age of 14, and, if necessary, parents, other interested persons and the child himself aged 10 to 14 years.

The court, having considered the application for adoption, makes a decision by which it satisfies the request of the adoptive parents (adoptive parent) for the adoption of the child or refuses to satisfy it.

When an adoption request is granted the court recognizes the child as adopted by specific persons (person) and indicates in the court decision all the data about the adopted child and the adoptive parents (adoptive parent) necessary for state registration of the adoption in the civil registry offices. The court, having satisfied the application for adoption, may refuse to satisfy the request of the adoptive parents (adoptive parent) to record them as the child's parents (parent) in the record of the child's birth certificate, as well as to change the date and place of the child's birth.

When an application for adoption is satisfied, the rights and obligations of the adoptive parents (adoptive parent) and the adopted child shall be established from the day the court decision on the adoption of the child enters into legal force.

A copy of the court decision on the adoption of a child is sent by the court within 3 days from the date the court decision enters into legal force to the civil registry office at the place where the court decision was made for state registration of the adoption of the child.

According to the Code of Civil Procedure of the Russian Federation, consideration and resolution of cases on the annulment of adoption are carried out according to the rules of action proceedings.

61. TROUBLESHOOTING OF CIVIL STATUS RECORDS

Registration of acts of civil status is carried out bodies of registration of acts of civil status by making appropriate entries in the books of registration of acts of civil status and issuing certificates on this basis.

If any incorrect entry is found in the act record, it is possible to submit an application for making corrections to the act record. In case of refusal of the civil registry office, the right to apply to the court arises.

The court considers cases on making corrections or changes in civil status records, if the civil registry offices, in the absence of a dispute about the right, refused to make corrections or changes in the records made.

In this case, the court acts as a body for appealing against the actions of civil registry officials.

The following conditions must be met in order for the case to be considered:

1) absence of a dispute about the right - if the court discovers data about the existence of a dispute about the right, the court must leave the application without consideration and explain to interested parties their right to go to court on a general basis by filing an appropriate statement of claim;

2) the refusal of the civil registration authorities to make a correction to the record;

3) the refusal of the body of registration of civil status acts to make a correction in the record made must be confirmed by a copy of the conclusion of this body.

Incorrectness of acts of civil status may consist either in an error of the civil registry office, made during the registration of the fact, or in a contradiction between the record and the circumstances that arose after the registration of the fact.

Not only citizens who have a defective document issued by the registry office, but also any other interested person can act as an applicant. An application for this category of cases, taking into account the interests of the applicant, is submitted to the court at the place of residence of the applicant.

The application for making corrections or changes in the entry of the civil status act must indicate what the incorrectness of the entry in the civil status act is, when and by which body of the registration of acts of civil status was refused to correct or change the entry made. Based on the results of the study of all the circumstances of the case, the court makes a decision.

The decision of the court, which established the incorrectness of the entry in the civil status act, serves as the basis for correcting or changing such an entry by the civil registry office, therefore the operative part of the decision must be clearly stated. The decision must indicate which entry is incorrect, in respect of which person (s) it was made, by which registry office and when. The adoption of such a decision gives rise to the obligation of the registry office to correct the corresponding entry in the books of civil status records or change such an entry.

62. COMPLAINTS AGAINST NOTARIAL ACTIONS OR REFUSAL TO PERFORM THEM

Complaints about notarial actions or refusal to perform them are considered in the order of special proceedings.

These cases are considered by a single judge.

object of appeal are notarial acts or refusal to perform them.

An interested person who considers a notarial action performed or a refusal to perform a notarial action wrong, has the right to file an application about this with the court at the location of the notary or at the location of the official authorized to perform notarial actions.

Statements about incorrect certification of wills and powers of attorney or refusal to certify them by officialsspecified in federal laws, are filed with the court at the location, respectively, of the hospital, hospital, sanatorium, or other inpatient medical institution; social service institutions, including homes for the elderly and disabled, social protection institutions; expedition, military unit, formation, institution and military educational institution, place of imprisonment.

An application for incorrect certification of a will or refusal to certify it by the captain of a sea vessel, a mixed navigation vessel or an inland navigation vessel flying the State Flag of the Russian Federation shall be filed with the court at the location of the vessel's port of registry.

The application is submitted to the court within 10 days from the day when the applicant became aware of the notarial act performed or the refusal to perform the notarial act.

A dispute about the law that has arisen between interested parties, based on a notarial act performed, is considered by the court in the order of action proceedings.

Such actions of a notary as slowness, rudeness and others are appealed to the institutions of justice (territorial departments, departments of the Ministry of Justice of the Russian Federation and the Ministry of Justice of individual regions).

Subject of law interested persons who act in the procedural role of the applicant are to apply to the court about actions or to refuse to commit them. The law does not contain a list of interested parties.

The complaint is considered by the judge in an open court session. The applicant, a public or private notary or an official who has performed the appealed notarial act or refused to perform the notarial act shall participate in the consideration of the complaint.

The law provides for the possibility of participation of both citizens and legal entities in the consideration of a complaint as interested persons.

Failure to appear properly notified of the day of consideration of the complaint of the persons participating in the case does not prevent the consideration of the complaint.

If a dispute arises between the interested parties on the law, based on the performed notarial act and under the jurisdiction of the courts, the court leaves the complaint without consideration and explains to the interested parties that they can resolve their dispute in the order of action proceedings.

If the complaint is justified, the court shall issue a decision by which it cancels the performed notarial action or obliges to perform such action.

63. CONCEPT AND OBJECTIVES OF CASSATION PROCEEDINGS

Cassation proceedings - the activities of the court of second instance to verify the legality and validity of the contested judicial decisions that have not entered into force.

The task of the cassation instance - Ensuring the rule of law in the activities of the courts of first instance, and ultimately - protecting the rights, freedoms and legitimate interests of citizens and organizations.

The essence of cassation proceedings.

1. A wide range of persons entitled to file a complaint, presentation - a cassation complaint may be filed by the parties and other persons participating in the case. Therefore, plaintiffs (co-plaintiffs), defendants (co-defendants), third parties, applicants and interested parties, state bodies, local governments and all organizations and persons participating in the case in order to protect other people's rights and interests have the right to appeal. The right to appeal within the prescribed period also belongs to the successors of the parties and third parties. The prosecutor participating in the case may bring a cassation presentation.

Cassation submissions are most often brought by prosecutors of districts (cities), since civil cases are considered at first instance, mainly by district courts. In the court of second instance, the submission is supported by the corresponding higher prosecutor.

2. The subject is decisions of courts of first instance that have not entered into legal force. Cassation appeals and submissions can be brought against decisions of all courts of the Russian Federation adopted at first instance, with the exception of decisions of magistrates.

An independent subject of the right of appeal can be a court decision, both in whole and in part, as well as the factual basis for the decision (reasons for the decision). If part of the decision is appealed, the unappealed part does not enter into legal force, since the court of second instance has the right, in the interests of legality, to check the decision of the court of first instance in full.

3. One of the real guarantees for the exercise of the constitutional right to judicial protection and the issuance of lawful and justified decisions by the courts is the right to appeal against decisions.

4. The court of cassation, as a general rule, checks the legality and validity of the decision of the court of first instance within the limits of the arguments set forth in the cassation appeal or presentation. But at the same time there is a possibility of full verification.

5. The court of cassation has a wide range of powers aimed at eliminating judicial errors.

6. The court evaluates the evidence available in the case without substituting the lower courts, and also examines new additional evidence, but only if it recognizes that they could not be presented by the party to the court of first instance, confirms the facts indicated in the appealed court decision or establishes new.

The value of the cassation proceedings - timely elimination of mistakes made by the courts of first instance in specific cases, thereby ensuring compliance with the law in the work of the court of first instance and protection of subjective rights, freedoms and legitimate interests.

64. RIGHT OF CASSATION APPEAL OF COURT DECISIONS

Right of cassation appeal - the possibility established by law for a person participating in a case to protect the rights, freedoms and legitimate interests in a court of second instance by filing a cassation appeal or submitting and revising court decisions that have not entered into force.

Filing a cassation complaint, presentation - the necessary and the only procedural action that gives rise to the right and duty of a higher court to initiate cassation proceedings and check the decision that has not entered into legal force.

Subjects of the right to appeal (protest) - participants in the process who have the right to file a complaint or protest:

1) parties (plaintiff and defendant);

2) third parties;

3) prosecutor;

4) persons applying to the court for the protection of the rights, freedoms and legitimate interests of other persons or entering into proceedings in order to testify applicants;

5) other interested persons in cases of special proceedings and in cases arising from public legal relations.

The right to file a complaint is limited to a 10-day period, calculated from the date of the adoption of the decision in the final form, and not from the date of delivery or sending to the parties and other persons participating in the case of a copy of the decision on the case. For some categories of cases, there are reduced terms or special procedures for calculating them. This deadline can only be missed for good reasons; in the absence of valid reasons, the right to appeal is lost.

A cassation appeal or presentation is filed through the court that made the decision.

The decision of the court of first instance, which has not entered into force, is reviewed by the court of second instance in the following order:

1) decisions of district courts, decisions of garrison military courts - respectively, to the Supreme Court of the republic, regional, regional court, court of a federal city, court of an autonomous region, court of an autonomous district, district military court;

2) decisions of the Supreme Courts of the 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. The judge, having received a cassation complaint, must first check whether the person has the right to file it and whether the requirements for its content are met.

A cassation complaint, presentation and written evidence attached to them shall be submitted to the court with copies, the number of which must correspond to the number of persons participating in the case.

In addition to the right to file a complaint, the person who filed the cassation complaint has the right to withdraw it. This is carried out in writing in the court of cassation prior to the adoption of the relevant court decision.

The prosecutor who brought the cassation presentation has the right to withdraw it before the start of the court session. The persons participating in the case shall be notified of the withdrawal of the cassation presentation.

An important condition for accepting a cassation complaint is payment of a state fee, which must be confirmed by an appropriate document.

65. PROCEDURE FOR SUBMISSION AND CONSIDERATION OF CASSATION COMPLAINTS AND PROTESTS

The decisions of all courts in the Russian Federation, taken at first instance, with the exception of decisions of justices of the peace, by the parties and other persons participating in the case, may be filed appeal, and the prosecutor participating in the case may bring cassation submission.

A cassation appeal may be filed in person or sent to the court by mail within 10 days, which may be extended for valid reasons.

The cassation appeal is addressed to a higher court than the one that made the decision.

A cassation appeal may be filed only by persons participating in the case.

The content of a cassation complaint (protest) is determined by the specific circumstances of the case and the content of the decision rendered by the court.

A cassation appeal or presentation must contain:

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.

The cassation appeal must be signed by the person filing it. The appeal is signed by the prosecutor.

If the complaint or presentation meets the legal requirements, then the court accepts it for consideration.

The order of consideration of the case in the court of cassation:

1) the case begins with a report by its presiding judge or a member of the court;

2) explanations of the persons participating in the case, who appeared at the court session, and their representatives are heard. When giving explanations, the persons participating in the case and their representatives are not bound by the arguments of their complaints. They have the right to give additional reasons not specified in the complaint. The person making the complaint comes first. When appealing against the decision by both parties, the plaintiff is the first to act, since he initiated the process in the court of first instance. After the speeches of the parties, third parties come forward with explanations. The persons participating in the case have the right to ask each other questions after their speeches. The members of the court of cassation, having heard the explanations of the parties and other persons participating in the case, ask them questions in order to clarify certain circumstances that were not covered in their speeches;

3) examination of evidence;

4) judicial debate in the court of cassation;

5) the issuance of a cassation ruling and its announcement is the final and most important stage of the trial in the cassation instance. In accordance with the Code of Civil Procedure of the Russian Federation, after giving explanations by the participating persons and the conclusion of the prosecutor, the court retires to the deliberation room to issue a ruling. The meeting and announcement of the decision by the judge of the cassation instance take place in the manner established for the court of first instance.

66. POWERS OF THE COURT OF CASSATION

The court has the right:

1) leave the decision unchanged, and the complaint or protest - without satisfaction. The court exercises this right if it considers that the decision of the court of first instance is legal and justified. A substantively correct decision of the court of first instance cannot be overturned for formal reasons alone;

2) cancel the decision in whole or in part and send the case for a new trial to the court of first instance in a different or in the same composition of judges. The decision is canceled in full if the court found a violation or incorrect application of substantive law and in the part that is contrary to law.

The norms of substantive law are considered violated or incorrectly applied if:

1) the court did not apply the law to be applied;

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

3) the court misinterpreted the law.

The decision of the court of first instance is subject to cancellation, regardless of the arguments of the cassation appeal, presentation, if:

1) the case was considered by the court in an illegal composition;

2) the case was considered by the court in the absence of any of the persons participating in the case who were not notified of the time and place of the court session;

3) when considering the case, the rules on the language in which the court proceedings are conducted were violated;

4) the court resolved the issue of the rights and obligations of persons not involved in the case;

5) the court decision is not signed by the judge or any of the judges, or the court decision is signed by the wrong judge or other judges, who are indicated in the court decision;

6) the decision of the court was not adopted by the judges who were members of the court that considered the case;

7) there is no record of the court session in the case;

8) when making the decision of the court, the rules on the secrecy of the meeting of judges were violated.

The case is sent for a new trial if, during the examination of the evidence, new circumstances of the case were discovered or provided by the parties that may affect the decision of the court.

3. Cancel the decision in whole or in part and terminate the proceedings or leave the application without consideration.

The decision of the court of first instance is subject to cancellation in cassation proceedings with the termination of the proceedings or leaving the application without consideration on the grounds specified in Art. 220 and 222 of the Code of Civil Procedure of the Russian Federation.

4. To change the decision or issue a new decision without remitting the case for a new trial, if the circumstances relevant to the case are established on the basis of the available, as well as additionally submitted, materials that the parties are familiar with.

The grounds for canceling or changing a court decision in cassation are:

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.

67. GROUNDS FOR CANCELING JUDGMENTS

The court of second instance is obliged to verify the legality and validity of the decision of the court of first instance. The basis for the annulment of a judgment is its illegality or groundlessness.

Unreasonable Judgment - a decision, the factual basis of which (motives for the decision) does not correspond to the actual circumstances of the case or is not supported by evidence examined by the court of first and second instances.

The validity of the judgment is checked by the court of second instance on the basis of the substantive law hypothesis based on the specific circumstances of the case.

In doing so, the Court of Second Instance finds out:

1) what circumstances the court of first instance should have established in the case;

2) what circumstances he established;

3) whether the conclusions of the court of first instance on the legal relations of the parties correspond to the circumstances of the case and whether the latter are confirmed by evidence;

4) whether the subject of proof is correctly defined;

5) whether the rules of relevance and admissibility of evidence have been observed, whether all the necessary evidence has been collected;

6) whether the court of first instance correctly assessed the evidence available in the case.

As a result of such a check, the decision will be recognized as unreasonable and subject to cancellation in the following cases:

1) the circumstances that are significant to the case are incorrectly determined, i.e. the court did not clarify all the circumstances that are significant to the case. Such a violation may be the result of an incorrect definition of the subject of proof (the range of facts sought);

2) failure to prove the circumstances relevant to the case, established by the court of first instance, i.e. the incompleteness of the collected evidence or their unreliability;

3) the conclusions of the court set out in the decision do not correspond to the circumstances of the case, i.e. the court made an incorrect conclusion about the legal relations of the parties, which, as a rule, is the result of an incorrect assessment of evidence or incorrect application of substantive law.

Illegal Judgment - a decision that does not comply with the substantive or procedural law to be applied in a particular case.

The Code of Civil Procedure of the Russian Federation identified specific cases of violation or misapplication of substantive law, as well as a list of unconditional grounds for the cancellation of a court decision in connection with a violation or misapplication of procedural law.

Based on the law, a court decision must be declared illegal in the following cases of violation of substantive law:

1) the court did not apply the law to be applied;

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

3) the court misinterpreted the law.

The decision will be declared illegal if the court:

1) incorrectly qualified the legal relations of the parties;

2) has applied a repealed law or a by-law issued in violation of the law;

3) misinterpreted the law;

4) violated the norms of procedural law. The basis for the annulment of the decision is the violation or incorrect application of the rules of procedural law only on the condition that this could lead to an incorrect resolution of the case.

68. DETERMINATION OF THE COURT OF CASSATION

Cassation definition - a procedural document that ends the consideration of the case in the cassation instance. A cassation ruling shall be issued regardless of the results of resolving the complaint or presentation.

The law, establishing the requirements for the content of the cassation ruling, essentially determines that it should consist of four parts: introductory, descriptive, motivational and resolutive.

In the introductory part the following shall be indicated: the date and place of the issuance of the ruling, the name of the court that issued the ruling, the composition of the court, the name of the judicial board; the prosecutor, if he participated in the case; the person who filed the complaint, presentation; the parties and other persons who participated in the consideration of the case in the cassation instance; short name of the subject of the dispute.

In the descriptive includes information about who made the report, a summary of the decision, complaints, submissions, objections against them, if any; explanations of the persons who participated in the consideration in the cassation instance; conclusion of the prosecutor participating in the court session; presented new evidence.

In the motivation part the conclusions of the court on the grounds for rejecting the complaint, presentation or their satisfaction, on the grounds for canceling, changing the decision or issuing a new decision, terminating the proceedings or leaving the claim without consideration, i.e., the motives on which the court came to its conclusions, should be contained. In this part of the ruling, the court is obliged to make references to the laws by which it was guided.

Rejecting the complaint, submission, the cassation instance must indicate which specific case materials refute the arguments of the complaint or presentation.

When canceling a decision in whole or in part and transferring the case for a new trial, the court is obliged to indicate what violation was committed and what actions the court of first instance should take during the new trial. For example, the cassation ruling should indicate what circumstances of the case have not been established, what procedural actions the court of first instance must perform during a new consideration of the case: to demand new evidence, to appoint a re-examination, etc.

In the operative part the conclusions of the court of second instance are formulated, which must indicate which court decisions were reviewed, the date of the decision and the names of the parties. When canceling a decision in part, the court must determine exactly in which part. When transferring a case for a new trial, it must be indicated to which court the case is being sent and in what composition it is to be considered.

When a complaint is satisfied the cassation instance is obliged to recover from the other side the state fee paid by the cassator.

The cassation ruling of the court, in which an answer is given regarding the legality and validity of the court decision, is such a procedural act of the court, which expresses the result of the assessment by the judges of all the materials of the case, as well as the conclusions set out by the court of first instance.

69. APPEAL (INTRODUCTION) OF DETERMINATIONS OF THE COURT OF FIRST INSTANCE

Object of cassation appeal - rulings of the court of first instance.

An appeal filed with a court of second instance separately from a cassation appeal is also called privately owned. The prosecutor has the right to submit to the cassation court private performance, if participated in the court of first instance.

Private Complaint (Submission) may be filed within 10 days from the date of the ruling by the court of first instance. This period shall be calculated from the day following the issuance of the ruling. In some cases, the term for appealing the ruling is calculated from the moment when the person concerned became aware of the ruling.

Not all rulings of the court of first instance may be appealed.

Rulings that are not subject to appeal include rulings issued for the preparation of a case or on issues related to the progress of a case.

Determinations subject to appeal by filing a private complaint include:

1) determinations, the admissibility of appeal of which is directly provided for by law;

2) rulings that exclude the possibility of further movement of the case, its consideration on the merits - the so-called preemptive and final rulings (on refusal to accept an application or cassation complaint, on termination of proceedings, etc.).

Right to file a private complaint belongs to persons whose rights and interests are affected by the decision of the court of first instance, subject to appeal.

The private complaint and presentation of the prosecutor are considered by the cassation instance in the manner prescribed for the consideration of complaints, submissions to decisions that have not entered into legal force, but with features:

1) filing a private complaint or presentation does not suspend the execution of the relevant ruling. The exception is an appeal against a ruling to cancel a previously adopted measure to secure a claim or to replace one type of security for a claim with another;

2) a private complaint (representation) is filed through the court that issued the ruling;

3) not the whole file is attached to the complaint, but only the documents necessary for the consideration of the complaint.

The cassation instance, having considered a private complaint, presentation of the prosecutor, has the right:

1) leave the ruling unchanged, and the complaint or submission unsatisfied, if he finds the ruling legal and justified;

2) cancel the court ruling and refer the issue for a new consideration to the court of first instance, if it is illegal or unreasonable and it is necessary to clarify any factual circumstances in the case;

3) cancel the ruling in whole or in part and resolve the issue on the merits, if the case does not require the establishment of any factual circumstances.

The legality and validity of the ruling of the court of first instance are checked without discussing issues related to the essence of the disputed legal relationship, circumstances relating to the merits of the case, since the latter are not affected by these rulings.

The ruling of the cassation instance, issued on the basis of a private complaint or protest, is not subject to appeal and enters into force immediately after its issuance.

70. CONCEPT AND OBJECTIVES OF PRODUCTION AT THE SUPERVISORY AUTHORITY

Supervisory proceedings - the exceptional stage of the civil process, at which the competent court, on the basis of a complaint or presentation of persons authorized to do so, checks the legality and validity of the decisions, rulings and resolutions of the courts of first instance that have entered into legal force, as well as rulings and resolutions issued by the courts in the cassation, appellate procedure.

Subject of supervisory proceedings - a court decision that has entered into force.

Decisions or rulings that have entered into legal force, for various reasons, may turn out to be incorrect even after revision in cassation. There are also cases when a court decision that has entered into legal force or a ruling that has not been appealed in a timely manner in a cassation procedure is incorrect.

Depending on the circumstances that necessitate the correction of court decisions and rulings that have entered into force, they may be revised. by way of supervision or due to newly discovered circumstances.

Supervisory proceedings are initiated by the parties and other persons participating in the case, who are entitled to apply directly to the supervisory court with a complaint against decisions and rulings that have entered into legal force.

Judicial decisions may be appealed to a court of supervisory authority within one year from the date of their entry into force.

The essence of review of cases by way of supervision. Authorized courts verify the legality of decisions and rulings that have entered into legal force after a preliminary verification of supervisory complaints of persons participating in the case, including the prosecutor, if he participated in the case.

The difference between a complaint and a submission only in the fact that the prosecutor's appeal is called a presentation. In essence, the presentation of the prosecutor does not differ from the complaint, since it is possible only if the prosecutor participated in the case and is checked in the supervisory authority in the same way as the complaints of the parties and other persons participating in the case, before the case is transferred to the supervisory authority.

At the stage of supervision, additional verification of the legality of judicial decisions and the possibility of correcting judicial errors are provided.

Revision of decisions and rulings that have entered into legal force, is a specific stage of civil proceedings. It is not related to the review of decisions in cassation and appeal. The supervisory authority can consider the case from the moment the decision enters into legal force.

This stage is a guarantee of the exercise of rights and protection of legitimate interests.

The Supervision Institute performs a number of tasks:

1) by checking the legality of judicial acts that have entered into legal force, the supervisory authority eliminates judicial errors, thereby protecting violated rights and interests;

2) after considering civil cases by way of supervision, summarizing the mistakes made by the lower courts, the court of the supervisory instance forms judicial practice for the purpose of uniform and correct application of substantive and procedural law by the courts.

71. PROCEDURE FOR INITIATING PROCEEDINGS AT THE SUPERVISORY AUTHORITY

Supervisory proceedings are initiated by filing a complaint or by presenting the prosecutor to the court.

The complaint is filed:

1) on decisions and rulings of the Supreme Courts of republics, regional, regional courts, courts of federal cities, courts of an autonomous region, courts of autonomous districts that have entered into legal force, adopted by them at first instance, if these decisions and rulings were not the subject of cassation or supervisory review in the Supreme Court of the Russian Federation; on cassation rulings of the Supreme Courts of republics, regional, regional courts, courts of federal cities, courts of an autonomous region, courts of autonomous districts; on appeal decisions and rulings of district courts; on court orders, decisions and determinations of district courts and magistrates that have entered into legal force - respectively, to the presidium of the Supreme Court of the republic, regional, regional court, court of a federal city, court of an autonomous region, court of an autonomous district;

2) against cassation rulings of district (naval) military courts; on decisions and rulings of garrison military courts that have entered into force - to the presidium of the district (naval) military court;

3) to the rulings of the presidiums of the supreme courts of the republics, territorial and regional courts, courts of cities of federal significance, courts of an autonomous region, courts of autonomous districts; on the decisions and rulings of the Supreme Courts of the republics, regional, regional courts, courts of cities of federal significance, courts of the autonomous region, courts of autonomous districts, adopted by them in the first instance, that have entered into legal force, if these decisions and rulings were not the subject of cassation consideration in the Supreme Court of the Russian Federation ;

4) to the rulings of the presidiums of district (naval) military courts; on the decisions and rulings of the district (naval) military courts that have entered into legal force, adopted by them in the first instance, if these decisions and rulings were not the subject of cassation consideration in the Supreme Court of the Russian Federation; on cassation rulings of district (naval) military courts, as well as on decisions and rulings of garrison military courts that have entered into force, if complaints against these court decisions were left without satisfaction by the presidium of the district (naval) military court, - to the Military Collegium of the Supreme Court of the Russian Federation;

5) on decisions and rulings of the Supreme Court of the Russian Federation that have entered into legal force, adopted by it in the first instance; to the rulings of the Cassation Collegium of the Supreme Court of the Russian Federation; on the rulings of the Judicial Collegium for Civil Cases of the Supreme Court of the Russian Federation, issued by it in the cassation procedure; on the rulings of the Military Collegium of the Supreme Court of the Russian Federation, issued by it in cassation, to the Presidium of the Supreme Court of the Russian Federation.

Supervisory complaint or presentation of the prosecutor, filed in accordance with Art. 377 Code of Civil Procedure of the Russian Federation with jurisdiction, on behalf of the chairman or deputy chairman of the relevant court, are submitted for consideration by a judge of this court.

72. CONTENT OF THE COMPLAINT, THE PRESENTATION OF THE PROSECUTOR

A supervisory complaint or a prosecutor's presentation shall be filed directly with the court of the supervisory instance.

Supervisory complaint or prosecutor's presentation must contain:

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.

In a supervisory complaint or a prosecutor's presentation against a ruling of the Judicial Collegium for Civil Cases of the Supreme Court of the Russian Federation or the Military Collegium of the Supreme Court of the Russian Federation issued in a supervisory procedure, it must be indicated what the violation of the unity of judicial practice consists of, and appropriate justifications for this violation must be given.

In the supervisory complaint of a person who did not take part in the case, it must be indicated which rights or legitimate interests of this person are violated by the court decision that has entered into legal force.

If a supervisory complaint or a prosecutor's presentation was previously submitted to the supervisory authority, they must indicate the court decision.

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.

Copies of judicial decisions adopted in the case certified by the appropriate court shall be attached to the supervisory appeal or presentation of the prosecutor.

A supervisory appeal or a prosecutor's presentation is submitted with copies, the number of which corresponds to the number of persons participating in the case.

If the court decision has not been challenged in an appeal or cassation procedure, a document confirming the payment of the state fee must be attached to the complaint.

Supervisory complaint or presentation of the prosecutor is returned by the judge without consideration on the merits within 10 days from the date of their receipt by the supervisory court if:

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.

73. PROCEDURE FOR CONSIDERATION OF A CASE IN THE SUPERVISORY INSTANCE

Judicial decisions are reviewed by way of supervision in a court session, but with various features:

1) the composition of the judicial bodies considering a supervisory complaint or presentation differs significantly from the usual composition of the courts. The presidiums of all courts are composed of the chairman of the court, his deputies and members of the court in a number determined in the prescribed manner;

2) in all courts of the supervisory instance, the case is reported by the chairman, his deputy, or on their behalf by another member of the presidium or another member of the court who has not previously participated in the consideration of the case;

3) persons participating in the case, their representatives, other persons who filed a complaint take part in the court session of the supervisory instance, if their rights and legitimate interests are directly affected by the appealed court decision;

4) consideration of the case in the session of the court of the supervisory instance begins with the report of the judge, which sets out the circumstances of the case, the content of the court rulings adopted on the case, the motives for the supervisory appeal or the prosecutor's presentation and the judge's decision to initiate supervisory proceedings. The speaker may be asked questions by the judges of the supervisory authority. If the persons participating in the case and other participants in the process appeared at the court session, they have the right to give an explanation on the case after the report. The person who filed the supervisory appeal is the first to give an explanation;

5) based on the results of the consideration of the case, the court of the supervisory instance shall issue a ruling. All issues arising during the consideration of the case are resolved by a simple majority of votes. In case of equality of votes "for" and "against" during the review of the case in the presidiums of the courts, the supervisory appeal or the presentation of the prosecutor shall be considered rejected. In the judicial chambers of the Supreme Court of the Russian Federation, this situation is excluded, since they have an odd number of judges.

The ruling of the supervisory authority must be motivated. In him must be specified:

1) the name and composition of the court that issued the ruling;

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

3) the case on which the ruling was issued;

4) the name of the person who filed the complaint or presentation;

5) the surname and initials of the judge who issued the ruling on the transfer of the case to the court of the supervisory instance for consideration on the merits;

6) content of appealed judicial decisions of lower courts;

7) the law on the basis of which the ruling was issued based on the results of the consideration of the case on the merits.

In addition, the ruling must set out the essence of the case in which the court decisions were made. Along with a reasoned statement of the grounds for transferring the case to the court of the supervisory instance for consideration on the merits, the said ruling must also contain proposals from the judge who issued the ruling.

After the decision is made, the supervisory complaint or presentation of the prosecutor, together with the materials of the case and the decision of the judge, is sent by him to the court of the supervisory instance.

In the court of the supervisory instance, with the exception of the Supreme Court of the Russian Federation, the supervisory appeal or presentation of the prosecutor is considered for no more than 1 month, and in the Supreme Court of the Russian Federation - no more than 2 months.

Article 74

Having considered the case by way of supervision, the court issues a decision in which makes one of the following decisions:

1) leave the decision of the court of the first, second or supervisory instance unchanged, and the supervisory complaint or the prosecutor’s presentation - without satisfaction, if it comes to the conclusion that the court’s decision is legal;

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 first, second or supervisory instance in whole or in part and leave the application without consideration or terminate the proceedings on the same grounds and with the same consequences as in the court of first and second instance;

4) to leave in force one of the court decisions adopted in the case, recognized as lawful;

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

Grounds for annulment or amendment of court decisions in the order of supervision are significant violations of the norms of substantive or procedural law. From the literal meaning of this norm it follows that only illegality is the basis for the cancellation or change of judicial decisions in the order of supervision.

Violation or incorrect application of the rules of procedural law shall be grounds for the annulment 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.

The norms of substantive law are considered violated or incorrectly applied if:

1) the court did not apply the law to be applied;

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

3) the court misinterpreted the law.

The court of the supervisory instance issues a decision according to the general rules for making a decision, but the judge must note in connection with what circumstances the decision was canceled or changed, and also explain in connection with which the decision of the court of the first, second or supervisory instance was left unchanged, and the supervisory complaint or presentation of the prosecutor - without satisfaction.

The instruction of the higher court on the interpretation of the law is binding on the court re-examining the case.

The supervisory authority, giving instructions to lower courts, must strictly observe the principle of independence of judges and their subordination only to the law, one of the manifestations of which is the independence of a lower court from a higher one. At the same time, the interpretation of the law given by the supervisory authority is advisory in nature.

The decision of the court of the supervisory instance shall enter into force from the date of its issuance. However, the decisions of the Judicial Collegium for Civil Cases of the Supreme Court of the Russian Federation and the Military Collegium of the Supreme Court of the Russian Federation may be filed with a supervisory appeal or a prosecutor's presentation to the Presidium of the Supreme Court of the Russian Federation.

75. CONCEPT, FEATURES AND GROUNDS FOR THE REVISION DUE TO NEWLY DISCOVERED CIRCUMSTANCES OF DECISIONS, DEFINITIONS AND REGULATIONS THAT HAVE ENTERED INTO FORCE

Revision due to newly discovered circumstances - an independent exceptional stage of the civil process, initiated at the request of the person participating in the case, or his representative, challenging the judicial act in connection with the discovery of new existing circumstances that were not and could not be known to the applicant during the trial.

A newly discovered circumstance - a legal fact that was not and could not be known to the person who subsequently declared this to the court at the time of the consideration of the case and casting doubt on the conclusions made by the court.

Features of the revision stage due to newly discovered circumstances:

1) independent goal of this stage - identification of grounds for subsequent verification of the compliance of the court decision with the actual circumstances of the case;

2) object of the revision stage due to newly discovered circumstances - decisions and rulings of the court that have entered into legal force. The appealed judicial decision is formally legal and justified, and the conclusions of the court are confirmed by the evidence examined in court, and only after the discovery of newly discovered circumstances, the compliance of the decision with the objective (judicial) truth is called into question.

Revision of court decisions due to newly discovered circumstances is carried out by the court that changed the court decision or adopted a new decision of Art. 393 Code of Civil Procedure of the Russian Federation).

The grounds for reconsideration on newly discovered circumstances of the decision, ruling of the court that have entered into force are:

1) circumstances significant to the case that were not and could not be known to the applicant at the time of consideration of the case;

2) knowingly false testimonies of a witness, knowingly false conclusion of an expert, knowingly mistranslation, falsification of evidence that entailed the adoption of an illegal or unreasonable decision, court ruling 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) cancellation of the decision, sentence, court ruling or decision of the state body or local self-government body, which served as the basis for the decision or ruling of the court (Article 392 of the Code of Civil Procedure of the Russian Federation).

Courts reviewing cases on newly discovered circumstances:

1) the first instance, which made the decision and determination;

2) the appellate instance that changed the decision or issued a new decision;

3) the cassation instance that changed the decision or issued a new decision;

4) the supervisory authority that issued a decision or ruling on changing the decision or issuing a new decision.

In contrast to the previous legislation, the range of judicial acts subject to revision due to newly discovered circumstances has been expanded.

Article 76

Proceedings for the revision of court decisions, rulings on newly discovered circumstances are initiated at the initiative of the persons participating in the case. An application for revision of the decision is submitted to the court of first instance. If the appellate, cassation or supervisory instances have changed the decision of the court of first instance or adopted a new decision, then an application for revision due to newly discovered circumstances is submitted to the court that adopted the new decision.

Term of circulation - 3 months from the date of establishing the grounds for the revision.

Day of Establishment - the date on which the person concerned became aware or should have become aware of the discovery of grounds for revision.

Upon discovery of significant circumstances for the case time calculation filing an application begins from the date of discovery of these circumstances.

If the grounds for revision are the poor quality of evidence, defects in the means of proof or criminal acts of the subjects of the process, confirmed by a judgment in a criminal case that has entered into legal force, the time limits shall be calculated from the day the judgment in the criminal case comes into force.

In cases where the basis for review is the refutation of a pre-judicially established fact underlying the court decision, the time limit for filing an application is calculated from the moment the decision, ruling, sentence comes into force, which cancels the previously issued decision, ruling, sentence.

If the basis for the review is the judicial cancellation of the decision of the state body or local self-government body, which served as the basis for the decision or ruling of the court, the deadline for filing an application begins from the date the court decision on the cancellation of the relevant non-judicial act comes into force.

If a state body or local self-government body cancels the decision underlying the decision or court ruling, the time limit for filing an application begins to run from the date the new decision is issued by the non-judicial body.

An application for revision due to newly discovered circumstances is not subject to state duty.

The court, which has accepted for consideration an application for review of the case due to newly discovered circumstances, is obliged to notify the persons participating in the case of the time and place of the trial, but their failure to appear is not an obstacle to considering the application.

The composition of the court, the procedure and terms for considering the application are determined by the relevant instance that considers the case.

When considering an application, proceedings are carried out in an abbreviated manner.

Based on the results of consideration of the application, the court makes a decision.

The court considering the application for review on newly discovered circumstances may:

1) recognize the circumstance as newly discovered and, on this basis, cancel the contested judicial act and consider the case taking into account the newly discovered circumstance;

2) refuse to recognize the circumstances as newly discovered and leave the challenged judicial decision in force.

77. ESSENCE OF ENFORCEMENT PROCEEDINGS

Enforcement proceedings - the procedure established by law for the enforcement of acts of jurisdictional bodies, which aims to ensure real protection of violated or contested subjective material rights or legally protected interests.

Entered into force judicial act of the arbitral tribunal is obligatory for all state bodies, local self-government bodies and other bodies, organizations, officials and citizens and is subject to execution throughout the territory of the Russian Federation.

Compulsory execution is carried out by the bailiff service, which is part of the system of bodies of the Ministry of Justice of the Russian Federation.

The bailiff service of the Ministry of Justice of the Russian Federation includes:

1) department of bailiffs of the Ministry of Justice of the Russian Federation;

2) bailiff service of the Department of Military Courts of the Ministry of Justice of the Russian Federation;

3) services of bailiffs of the justice bodies of the constituent entities of the Russian Federation;

4) district, inter-district divisions of bailiffs.

In the order of enforcement proceedings, decisions of courts of general jurisdiction, acts of arbitration courts, as well as acts of other non-judicial bodies are executed.

Not all jurisdictional acts are enforceable. Decisions rendered on claims for recognition are not subject to enforcement under the rules of enforcement proceedings. They state the presence or absence of a legal relationship and are implemented depending on the will of the interested persons by state and other bodies and officials. The majority of decisions on cases of special proceedings and decisions on a number of categories of cases arising from administrative-legal relations are also not subject to compulsory execution.

Subject to compulsory execution award decisions, i.e. when a decision is made on the performance by the defendant of certain actions or on refraining from taking certain actions. The defendant can execute the court decision voluntarily, but if for some reason he evades execution, the plaintiff has the right to demand that the state authorities take such measures against the defendant that would lead to the implementation of the court decision. The adoption of such measures takes place in the order of enforcement proceedings.

Enforcement proceedings - the last, final stage of the civil process, which enforces the court's decision on the case. The process of protecting the right after the decision is made and its entry into force continues in the form of enforcement proceedings.

Enforcement proceedings in civil proceedings are characterized by a number of features:

1) in civil procedural legal relations, the court is an obligatory participant;

2) there is dispositivity, which determines the mechanism of movement of the civil process. Dispositivity suggests that the main driving force of civil proceedings is the initiative of the persons participating in the case;

3) there is an interrelation of the rights and obligations of all subjects;

4) there is a regulation of civil procedural relations by the rules of law;

5) the bearer of power is the court;

6) there are grounds for the emergence of legal relations.

78. MECHANISM OF ENFORCEMENT PROCEEDINGS

Enforcement proceedings are initiated by the presentation of enforcement documents for collection.

executive documents - documents specified in the law, subject to compulsory execution by a bailiff in the manner prescribed by law, in case of non-execution by the debtor on a voluntary basis.

The executive document must indicate:

1) the name of the court or other body that issued the executive document;

2) the case or materials on which the writ of execution was issued, and their numbers;

3) the date of adoption of a judicial act or an act of another body subject to execution;

4) the names of the claimant-organization and the debtor-organization, their addresses; surname, name, patronymic of the recoverer-citizen and debtor-citizen, their place of residence, date and place of birth of the debtor-citizen and place of his work;

5) the operative part of a judicial act or an act of another body;

6) the date of entry into force of a judicial act or an act of another body;

7) the date of issuance of the executive document and the deadline for presenting it for execution.

Executive documents must be presented for execution within the time limits established by law.

Writs of execution issued by:

1) on the basis of judicial acts of courts of general jurisdiction - are presented for execution within 3 years;

2) on the basis of judicial acts of arbitration courts, decisions of international commercial arbitration, other arbitration courts - within 6 months;

3) on the basis of certificates of commissions on labor disputes, decisions of bodies (officials) authorized to consider cases of administrative offenses - within 3 months.

Violation of these terms entails the return of the enforcement document without execution.

Recovery of missed deadlines perhaps if they were omitted for good reasons.

With the initiation of enforcement proceedings, the law connects the occurrence of certain legal consequences for both the debtor and the recoverer. From the moment enforcement proceedings are initiated, relations between the parties or other subjects of enforcement proceedings and the bailiff acquire the nature of relations of power and subordination; .

The initiation of enforcement proceedings is formalized by the bailiff in the form of a decision to initiate enforcement proceedings. This decision must be issued within 3 days from the date of presentation of the executive document to him.

After that, the bailiff invites the debtor to voluntarily comply with the requirements and establishes a certain period before the application of state-authoritative coercion to him in the form of enforcement measures.

Deadline for voluntary execution may not exceed 5 days from the date of initiation of enforcement proceedings.

79. ENFORCEMENT MEASURES

Grounds for applying enforcement measures:

1) presentation in the manner established by federal law of a properly executed executive document;

2) adoption by the bailiff-executor of the decision to initiate enforcement proceedings;

3) the expiration of the period established by the bailiff for voluntary execution. The grounds are listed in the sequence in which the commission as a result leads to the beginning of compulsory execution.

Enforcement measures:

1) foreclosure on the debtor’s property by seizing the property and its sale;

2) foreclosure on wages, pensions, stipends and other types of income of the debtor;

3) foreclosure on cash and other property of the debtor held by other persons;

4) seizure from the debtor and transfer to the recoverer of certain items specified in the executive document;

5) other measures taken in accordance with federal laws.

All of these measures can be applied in the implementation of enforcement actions against the debtor, both independently and in the aggregate.

When levying execution on property and funds by imposing an attachment, one should keep in mind the possibility of taking these interim measures even when considering in civil or arbitration proceedings.

Foreclosure on the debtor's property - one of the most common enforcement measures. The form of implementation of this compulsory enforcement measure consists in the inventory, arrest and subsequent forced sale of the debtor's property.

Description of the debtor's property - a procedural method of documenting the fact of the seizure of the debtor's property, drawn up by drawing up an appropriate document - an act of inventory and seizure of property.

Transfer of seized property for custody - one of the components of the procedure for the seizure of property.

Goal - ensuring its safety, i.e. preventing its waste, alienation or concealment by the debtor, which is ensured by measures of civil and criminal liability.

If the debtor does not have funds, foreclosure is levied on other property belonging to the debtor, with the exception of property on which, in accordance with federal law, foreclosure cannot be levied.

Recovery cannot be levied on amounts paid:

1) for compensation for harm caused to health, as well as for compensation for harm to persons who suffered damage as a result of the death of the breadwinner;

2) persons injured in the performance of their official duties;

3) in connection with the birth of a child - to mothers with many children; single father or mother; for the maintenance of minor children during the search for their parents; pensioners and disabled people of the XNUMXst group for their care; for maintenance obligations;

4) for work with harmful working conditions or in extreme situations;

5) organization in connection with the birth of a child, death of relatives, marriage registration, as well as severance pay paid upon dismissal of an employee.

80. COSTS OF EXECUTIVE ACTIONS. RESPONSIBILITY FOR VIOLATION OF THE LEGISLATION ON EXECUTIVE PROCEEDINGS

Expenses for enforcement actions - funds spent on organizing and carrying out these actions from the off-budget fund for the development of enforcement proceedings, the regulation on which is approved by the Government of the Russian Federation, as well as funds of the parties and other persons participating in enforcement proceedings.

The costs of enforcement actions include funds spent on:

1) transportation, storage and sale of the debtor’s property;

2) payment for the work of translators, witnesses, specialists and other persons involved in the prescribed manner in the performance of enforcement actions;

3) transfer (sending) by mail to the recoverer of the collected amounts;

4) search for the debtor, his property or search for a child taken from the debtor in court;

5) other necessary executive actions performed in the process of execution of the executive document.

In order to ensure the performance of enforcement actions, the recoverer has the right to make an advance contribution to the deposit account of the unit in an amount sufficient to cover the corresponding expenses or part of them.

Upon completion of enforcement actions, the advance fee is fully returned to the claimant.

In cases of termination of enforcement proceedings due to the unreasonable refusal of the recoverer to receive items seized from the debtor during the execution of the writ of execution on transferring them to the recoverer, and the return of the writ of execution to the recoverer, if he interfered with the execution of the writ of execution by his actions (inaction), the part of the advance payment in excess of the costs of committing executive action.

In the event of termination of enforcement proceedings due to the cancellation of the decision on the basis of which the enforcement document was issued, the costs of enforcement actions are charged to the federal budget.

In case of unjustified refusal of the claimant from the receipt of items seized from the debtor during the execution of the enforcement document, the law, the costs of enforcement actions are recovered from the recoverer.

In case of non-compliance without good reason executive document obliging the debtor to perform certain actions or refrain from doing them, within the period established by the bailiff, he issues a decision to impose a fine on the debtor in the amount of up to 200 times the minimum wage and appoints him a new deadline for execution. In case of subsequent violations by the debtor without good reason of the new deadlines for the execution of the executive document, the amount of the fine doubles each time.

In case of repeated non-execution without good reason of the executive document the bailiff submits to the relevant authorities a submission on bringing to administrative or criminal liability provided for by the legislation of the Russian Federation, a citizen or official who, by virtue of their official duties, must execute the executive document.

81. ARBITRATION COURT: ESSENCE, OBJECTIVES, ORGANIZATION, STRUCTURE AND COMPETENCE

Arbitration proceedings protects the rights and legitimate interests of persons engaged in entrepreneurial and other economic activities, as well as the rights and legitimate interests of the Russian Federation, constituent entities of the Russian Federation, municipalities in the field of entrepreneurial and other economic activities, state authorities of the Russian Federation, state authorities of the constituent entities of the Russian Federation, local authorities self-government, other bodies, officials in the specified area.

The system of arbitration courts in the Russian Federation consists of:

1) Supreme Arbitration Court of the Russian Federation;

2) federal arbitration courts of districts (arbitration courts of cassation);

3) arbitration courts of appeal;

4) arbitration courts of first instance in the republics, territories, regions, cities of federal significance, autonomous regions, autonomous districts.

Tasks of legal proceedings in arbitration courts:

1) ensuring accessibility of justice in the field of business and other economic activities;

2) a fair public trial within the time limit established by law by an independent and impartial court;

3) strengthening the rule of law and preventing offenses in the field of entrepreneurial and other economic activities;

1) formation of a respectful attitude towards the law and the court;

5) assistance in the formation and development of partnership business relations, the formation of customs and ethics of business turnover.

6) assistance in strengthening the rule of law and preventing offenses in the field of entrepreneurial and other economic activities. The activities of arbitration courts in the Russian Federation are being built principles legality, independence of judges, equality of organizations and citizens before the law and the court, competitiveness and equality of the parties, publicity of the proceedings.

Arbitration courts in the Russian Federation administer justice by resolving economic disputes and considering other cases referred to their competence by the Constitution of the Russian Federation, the Federal Constitutional Law "On Arbitration Courts", the Arbitration Procedure Code of the Russian Federation and other federal laws adopted in accordance with them.

to the jurisdiction of the arbitral tribunal include cases on economic disputes arising from civil, administrative and other legal relations. Economic disputes - all disputes under the jurisdiction of the arbitration court, including both disputes arising from civil legal relations, which were traditionally referred to as property, and management disputes arising from administrative legal relations.

The jurisdictional cases in the first instance of the arbitration court are considered by the judge alone or collectively. Collegial consideration of cases in the arbitration court of the first instance is carried out in the composition of 3 judges or a judge and 2 arbitration assessors.

Proceedings in arbitration courts are conducted in civil and administrative order.

82. PARTICIPANTS OF THE ARBITRATION PROCESS

Participants of the arbitration process.

1. Judge in arbitration proceedings - the Chairman of the Supreme Arbitration Court of the Russian Federation, his deputies, judges of the Supreme Arbitration Court of the Russian Federation, chairmen, deputy chairmen, judges of federal arbitration courts of districts and arbitration courts of constituent entities of the Russian Federation. The judge has the terms of reference and exercises a leading role in the court session. His powers are aimed at the correct, complete and competent consideration of the case.

As a participant in the proceedings, the court may act both as a collegial body and as a single judge.

2. Persons participating in the case and other participants in the arbitration process:

1) sides;

2) third parties;

3) prosecutor;

4) state bodies;

5) local governments;

6) other bodies that applied to the arbitration court.

These individuals have a personal interest in the outcome of the case.

The persons participating in the case have the right:

1) get acquainted with the case materials, make extracts from them, make copies;

2) declare challenges;

3) present evidence and get acquainted with the evidence presented by other persons participating in the case before the start of the trial;

4) participate in the examination of evidence;

5) put questions to other participants in the arbitration process, file petitions, make statements, give explanations to the arbitration court, present their arguments on all issues arising during the consideration of the case;

6) get acquainted with the petitions filed by other persons, object to the petitions, arguments of other persons participating in the case;

7) to know about the complaints filed by other persons participating in the case, to know about the judicial acts adopted in this case and to receive copies of the judicial acts adopted in the form of a separate document;

8) appeal against judicial acts;

9) enjoy other procedural rights. In addition to the general rights, the parties also own individual exclusive rights. Thus, the plaintiff has the right, before the decision of the arbitration court, to change the basis or subject of the claim, to increase or decrease the amount of claims, or to refuse the claim. The parties may end the case by amicable agreement at any stage.

Third parties - persons entering into a process that has already arisen between the plaintiff and the defendant in connection with the interest in resolving the dispute along with the parties. The nature of the interest in the outcome of the dispute may be different - the law distinguishes between third parties declaring and not declaring independent claims on the subject of the dispute.

These persons enter the process due to the fact that the decision on the case may affect them.

Prosecutor also has an interest. He enters the process in order to protect the rights and interests of someone, his task is to make a lawful and justified decision by the court.

Other participants in the arbitration process - witnesses, experts, translators, representatives - are called upon to promote justice. They are called to assist the court in a correct and complete examination of the circumstances of the case. These persons have a narrower circle of rights, they have no personal interest in the outcome of the case. If it is, a person from this group should be taken away.

83. PROCEEDINGS IN THE ARBITRATION COURT OF FIRST INSTANCE. REVISION OF DECISIONS OF ARBITRATION COURTS

Proceedings in the arbitration court of first instance begin from the moment of filing a statement of claim by an interested person who has the right to do so. The statement of claim shall be submitted to the arbitration court in writing. The statement of claim shall be signed by the plaintiff or his representative.

Once the claim is accepted, the trial begins. Litigation is intended to consider and resolve the dispute on the merits. Considering the case, the arbitration court must directly examine the evidence, establish the actual circumstances of the case, ascertain the rights and obligations of the parties; When resolving a case, the court issues a lawful and reasoned decision.

The consideration of the case takes place with the obligatory notification of the persons participating in the case.

The court session can be divided into several parts (stages):

1) preparatory part;

2) consideration of the case on the merits;

3) resolution and announcement of the decision. In the event of a collegial consideration of the case, the session is presided over by the chairman of the court, his deputy or a judge of the arbitration court.

The decision of the court of first instance, issued in accordance with the Arbitration Procedure Code of the Russian Federation on the materials available in the case, may be appealed.

The decision can be appealed in cassation and appeal procedure. It depends on whether the decision has entered into force or not. In the appellate procedure, decisions that have not entered into legal force are considered, and in the cassation procedure, those that have entered into legal force.

The decision can be appealed by filing a complaint within 1 month to the appellate instance after the decision is made and within 2 months to the cassation instance from the date of entry into force of the contested decisions.

The appeal process consists of the following steps:

1) filing a complaint;

2) acceptance or refusal to consider;

3) preparation of proceedings;

4) investigation of the circumstances of the case;

5) making a decision.

Based on the results of consideration of the cassation appeal, the arbitration court of the cassation instance has the right to:

1) leave the decision of the arbitration court unchanged;

2) cancel or change the decision of the court of first instance;

3) cancel or change the decision of the court of first instance in whole or in part and send the case for a new consideration to the arbitration court;

4) cancel or change the decision of the court of first instance in whole or in part and transfer the case for consideration by another arbitration court;

5) to leave in force one of the decisions or resolutions previously adopted in the case;

6) cancel the decision of the court of first instance.

Grounds for changing or canceling a decision, resolution of the arbitration court of first instance are discrepancy between the conclusions of the court contained in the decision, ruling, the actual circumstances of the case, established by the arbitration court of the cassation and appellate instances, and the evidence available in the case, violation or incorrect application of the norms of substantive law or the norms of procedural law.

84. PROCEEDINGS IN CASES INVOLVING FOREIGN PERSONS

Foreign persons have the right to apply to the courts in the Russian Federation to protect their violated or disputed rights, freedoms and legitimate interests. At the same time, they enjoy procedural rights and perform procedural obligations on an equal basis with Russian citizens and organizations.

Foreign persons - foreign citizens, stateless persons, foreign organizations, international organizations.

Civil procedural legal capacity and legal capacity of foreign persons is determined by:

1) personal law, i.e. the law of the country whose citizenship the citizen has:

a) if a person has Russian and foreign citizenship, Russian law is considered his personal law;

b) if a person has citizenship of several foreign states, his personal law shall be the law of the country in which the citizen has a place of residence;

c) the personal law of a stateless person is the law of the country in which this person has a place of residence;

d) 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.

Jurisdiction of cases involving foreign persons by courts in the Russian Federation is determined according to the general rules provided for by the Code of Civil Procedure of the Russian Federation, i.e. courts of the Russian Federation can consider cases involving foreign persons if the defendant has a place of residence in the Russian Federation or is located on the territory of the Russian Federation.

Place of residence citizen - the place where he permanently or temporarily resides.

Courts may also consider cases if:

1) the management body, branch or representative office of a 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) the plaintiff, who is involved in the case on the recovery of alimony and on the establishment of paternity, 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) the plaintiff involved in the divorce case has a place of residence in the Russian Federation or at least one of the spouses is a Russian citizen;

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

It is also possible to apply the rules of alternative jurisdiction - the parties choose where the dispute is considered.

It is also possible to apply the rules of exclusive jurisdiction.

Exclusive jurisdiction includes:

1) cases on the right to real estate 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.

85. FEATURES AND TYPES OF ARBITRATION COURTS

Arbitration court - the court of a third party, elected by the disputing parties themselves, to whom they voluntarily entrust the decision on their case and undertake to obey this decision in advance.

Purpose of arbitration - settlement of legal conflicts that have arisen and ensuring the voluntary fulfillment of obligations.

The legislation on arbitration courts for resolving economic disputes provides for two types of arbitration courts:

1) arbitration courts created to resolve a specific dispute (the so-called “ad hoc” arbitration courts);

2) permanent arbitration courts. The difference between them is that when submitting a dispute to an arbitration tribunal established to consider a specific dispute, the parties themselves must determine in detail the procedure for its formation and the procedure for considering the dispute.

Features of arbitration courts:

1) the subject of the proceedings is a dispute or a group of disputes in relation to which the parties have agreed to be considered by a panel specially created for this purpose (or by a single arbitrator);

2) the procedure for appointing arbitrators or the composition of the tribunal may be agreed upon when determining in the contract or separate agreement the conditions for the consideration of the dispute by the arbitral tribunal;

3) the conclusion by the parties of an agreement on the transfer of a dispute to a permanent arbitration court implies that the parties instruct this institution to resolve those organizational issues that, by law, they are entitled to resolve independently;

4) if the parties conclude an agreement on the transfer of a dispute to an arbitration court, such a dispute cannot be the subject of consideration in an arbitration court;

5) the flexibility of the arbitration procedure, including the provision of broad opportunities for the parties to independently choose arbitrators to resolve the dispute. The parties have the right to elect as arbitrators any persons with the necessary qualifications, including foreigners;

6) the arbitral tribunal makes a decision in accordance with the terms of the contract and taking into account the trade customs applicable to this contract;

7) arbitration courts, including permanent ones, cannot issue orders and other enforcement documents;

8) arbitration proceedings are carried out on the basis of the principles of legality, confidentiality, independence and impartiality of arbitrators, optionality, competitiveness and equality of the parties.

The rest of the procedure is similar to the consideration of the case in the court of first instance and ends with the issuance of a court decision.

In accordance with the Code of Civil Procedure of the Russian Federation, the decision of the arbitral tribunal may be challenged by the parties to the arbitration by filing an application to cancel the decision of the arbitral tribunal. At the same time, it is stipulated that only decisions of the arbitration court adopted on the territory of the Russian Federation can be challenged.

The application must be filed with the court in whose territory the disputed decision of the arbitration court was made. To file an application for the annulment of the decision of the arbitral tribunal, a 3-month period is established, calculated from the date of receipt of the disputed decision by the party that filed the application.

86. PROCEDURE FOR CONSIDERATION OF DISPUTES IN THE ARBITRATION COURT

Dispute consideration procedure.

1. Filing a statement of claim - the plaintiff sets out his claims in a statement of claim, which is submitted in writing to the arbitration court. A copy of the statement of claim is sent to the defendant.

The defendant has the right to submit to the plaintiff and to the arbitration court response to the statement of claim, setting out his objections to the claim. The response to the statement of claim is submitted to the plaintiff and to the arbitration court in the manner and within the time limits provided for by the rules of arbitration proceedings. If the rules of arbitration proceedings do not specify the deadline for submitting a response to the statement of claim, then the said response is submitted before the first meeting of the arbitration court.

2. Preparatory stage - an agreement on the consideration of the case is concluded, where the language, place and basic rules for the consideration of the dispute are determined. In an arbitration court to resolve a specific dispute, the parties may, at their discretion, agree on the place of arbitration, if this did not happen, then the place of arbitration is determined by the arbitration court to resolve a specific dispute, taking into account all the circumstances of the case, including the factor of convenience for the parties.

Unless otherwise agreed by the parties, the arbitration proceedings shall be conducted in Russian.

3. Consideration of the case on the merits - happens according to the agreement. Each party must prove the circumstances to which it refers as the justification for its claims and objections. The arbitral tribunal has the right, if it deems the evidence submitted insufficient, to invite the parties to submit additional evidence. Each party must be given equal opportunities to present their position and defend their rights.

Unless otherwise agreed by the parties, minutes shall be kept at the arbitration court session.

4. Judgment in a case - after examining the circumstances of the case, the arbitral tribunal, by a majority vote of the arbitrators who are members of the arbitral tribunal, makes a decision.

The decision is announced at the meeting of the arbitration court. The arbitral tribunal has the right to announce only the operative part of the award. In this case, if the parties have not agreed on a deadline for sending the decision, a reasoned decision must be sent to the parties within a period not exceeding 15 days from the date of the announcement of the operative part of the decision.

The arbitral tribunal has the right, if it considers it necessary, to postpone the decision and call the parties to an additional session.

At the request of the parties, the arbitral tribunal accepts decision to approve the settlement agreement, if the settlement agreement does not contradict laws and other regulations and does not violate the rights and legitimate interests of other persons. The contents of the settlement agreement are set out in the arbitration court decision.

The decision of the arbitral tribunal shall be considered adopted at the place of the arbitral proceedings and on the day when it is signed by the arbitrators who are members of the arbitral tribunal.

The decision of the arbitral tribunal to resolve a specific dispute within a month after its adoption is sent together with the materials on the case for storage to the competent court.

87. PROCEDURE FOR THE ENFORCEMENT OF THE DECISION OF THE COURT OF ARBITRATION

The decision of the arbitral tribunal is executed voluntarily in the manner and terms established in the decision. If no deadline is set, the decision is subject to immediate execution.

If the decision of the arbitral tribunal is not executed voluntarily within the established period, then it is subject to compulsory execution.

Enforcement of the decision of the arbitration court is carried out according to the rules of enforcement proceedings in force at the time of execution of the decision of the arbitration court, on the basis of a writ of execution issued by the competent court for the enforcement of the decision of the arbitration court.

The order of execution of the decision of the arbitration court.

1. Application for the issue of a writ of execution - filed with the competent court by the party in whose favor the decision was made. An application for the issuance of a writ of execution may be filed no later than 3 years from the date of expiration of the period for voluntary enforcement of the decision of the arbitration tribunal.

An application for the issuance of a writ of execution, which was filed with a missed deadline or to which the necessary documents were not attached, is returned by the competent court without consideration, about which a ruling is issued, which can be appealed in the manner established by the arbitration procedural or civil procedural legislation of the Russian Federation. The competent court has the right to restore the deadline for filing an application for the issuance of a writ of execution if it finds the reasons for missing the specified deadline valid.

2. Consideration of the application - an application for the issuance of a writ of execution is considered by a judge of the competent court alone within 1 month from the date of receipt of the application by the competent court. The parties shall be notified of the time and place of consideration of the said application, however, the absence of the parties or one party shall not be an obstacle to the consideration of the application.

3. Determination - based on the results of consideration of the application for the issuance of a writ of execution, the competent court shall issue a ruling on the issuance of a writ of execution or on the refusal to issue a writ of execution. The decision of the competent court to issue a writ of execution shall be subject to immediate execution.

The competent court shall issue a ruling on refusal to issue a writ of execution in cases where:

1) the arbitration agreement is invalid;

2) the decision of the arbitral tribunal is made on a dispute not provided for by the arbitration agreement or not subject to its conditions, or contains rulings on issues that go beyond the limits of the arbitration agreement;

3) the composition of the arbitral tribunal or the arbitral proceedings did not comply with the law;

4) the party against which the decision of the arbitral tribunal was made was not properly notified of the election (appointment) of arbitrators or of the time and place of the arbitral tribunal's session, or for other reasons could not submit its explanations to the arbitral tribunal. A writ of execution issued for the enforcement of a decision of an arbitration court shall be subject to execution in accordance with the general rules of enforcement proceedings.

88. ORGANIZATION AND COMPETENCE OF A NOTARY IN RUSSIA

The legal basis for the organization and activities of the notary service is enshrined in the Fundamentals of the legislation of the Russian Federation on notaries.

Notary in the Russian Federation is designed to ensure, in accordance with the Constitution of the Russian Federation, the Constitutions of the republics within the Russian Federation, the protection of the rights and legitimate interests of citizens and legal entities by performing by notaries the notarial actions provided for by legislative acts on behalf of the Russian Federation.

Notarial acts in the Russian Federation are committed in accordance with the law by notaries working in a state notary's office or engaged in private practice.

Register of state notary offices and notary offices, engaged in private practice, is conducted by the federal executive body that exercises control functions in the field of notaries.

In the absence of a notary in the locality notarial actions are performed by officials of executive authorities authorized to perform these actions.

Notarial actions on behalf of the Russian Federation on the territory of other states are performed by officials of the consular institutions of the Russian Federation authorized to perform these actions.

Notarial activity is not an entrepreneurship and does not pursue the goal of making a profit.

For a notary in the Russian Federation, a citizen of the Russian Federation who has a higher legal education, who has completed an internship for a period of at least one year in a state notary's office or with a notary engaged in private practice, who has passed a qualifying exam, and who has a license for the right to notarial activities, is appointed in the manner prescribed by law.

Notaries engaged in private practice perform the following notarial acts:

1) certify transactions;

2) issue certificates of ownership of a share in the common property of the spouses;

3) impose and remove prohibitions on the alienation of property;

4) testify to the accuracy of copies of documents and extracts from them;

5) testify to the authenticity of the signature on the documents;

6) testify to the correctness of the translation of documents from one language into another;

7) certify the fact that the citizen is alive;

8) certify the fact that a citizen is in a certain place;

9) certify the identity of the citizen with the person depicted in the photograph;

10) certify the time of presentation of documents;

11) transfer applications of individuals and legal entities to other individuals and legal entities;

12) accept monetary amounts and securities as a deposit;

13) make executive inscriptions;

14) make protests of bills;

15) present checks for payment and certify non-payment of checks;

16) accept documents for storage;

17) make sea protests;

18) provide evidence.

Notaries working in state notary offices perform the same notarial acts, as well as issue certificates of the right to inheritance and take measures to protect the inheritance property.

89. CERTIFICATION OF TRANSACTIONS BY THE NOTARY

A notary certifies transactions for which the legislation of the Russian Federation and the republics within the Russian Federation establishes a mandatory notarial form. At the request of the parties, the notary may certify other transactions.

The notary is obliged to explain to the parties the meaning and significance of the draft transaction submitted by them and to check whether its content corresponds to the actual intentions of the parties and whether it contradicts the requirements of the law.

The notary certifies:

1) contracts of alienation and pledge of property subject to registration - they can be certified subject to the presentation of documents confirming the ownership of the alienated or pledged property;

2) an agreement on the construction of a residential building on an allotted land plot - it is certified by a notary at the place of allotment of the land plot. Certification of agreements on the alienation of a residential building, apartment, dacha, garden house, garage, as well as a land plot is carried out at the location of the specified property;

3) wills - a notary certifies the wills of capable citizens, drawn up in accordance with the requirements of the legislation of the Russian Federation and the republics within the Russian Federation and personally presented by them to the notary. Certification of wills through representatives is not permitted. When certifying wills, testators are not required to provide evidence confirming their rights to the bequeathed property. A notary, in the event of receiving notification of the cancellation of a will, as well as receiving a new will that cancels or changes a previously drawn up will, makes a note about this on a copy of the will kept by the notary and in the register of registration of notarial actions. Notice of revocation of a will must be notarized;

4) powers of attorney - a notary certifies powers of attorney on behalf of one or more persons, in the name of one or more persons. A power of attorney issued by way of sub-assignment is subject to notarization upon presentation of the main power of attorney, which stipulates the right to sub-assignment, or upon presentation of evidence that the representative under the main power of attorney is forced to do so by force of circumstances to protect the interests of the person who issued the power of attorney. A power of attorney issued by way of subrogation should not contain more rights than those granted under the main power of attorney. The validity period of a power of attorney issued by way of subpoenaing cannot exceed the validity period of the power of attorney on the basis of which it was issued. The number of copies of documents setting out the contents of a transaction certified by a notary is determined by the persons applying for the notarial act, but cannot exceed the number of parties participating in the transaction. However, the will and agreements on the pledge of property, the construction of a residential building, the alienation of a residential building and other real estate are provided to the notary in at least two copies, one of which remains in the files of the notary’s office.

90. GENERAL RULES FOR NOTARY PROCEEDINGS

Notarial acts are performed by a notary upon presentation of all necessary documents that meet legal requirements.. They can be performed in a notary’s office or outside it.

Notarial acts can be performed by any notary, except for cases where, in accordance with the law, a notarial act must be performed by a certain notary.

When performing notarial acts notaries have equal rights and bear the same duties regardless of whether they work in a public notary's office or are in private practice. Documents drawn up by notaries have the same legal force.

When performing notarial acts, the notary must establish the identity of the citizen who applied for notarial acts, his representative or representative of a legal entity. Identification is carried out on the basis of a passport or other documents that exclude any doubts about the identity of a citizen who applied for a notarial act.

The content of the notarized transaction, as well as statements and other documents, must be read aloud to the participants. All documents drawn up in a notarial order are signed in the presence of a notary.

Notaries must not accept for notarial acts documents that have erasures or additions, crossed out words or other corrections, as well as documents written in pencil.

A notary is obliged to refuse to perform a notarial act if:

1) committing such an action is contrary to the law;

2) the act is to be performed by another notary;

3) an incapacitated citizen or a representative without appropriate authority applied for notarial acts;

4) a transaction made on behalf of a legal entity is contrary to the goals specified in its charter or regulation; the transaction does not comply with the requirements of the law;

5) the documents provided for the performance of notarial acts do not comply with the requirements of the law.

All notarial actionsperformed by a notary, are registered in the register, the forms of the register are established by the Ministry of Justice of the Russian Federation.

The notary is not entitled perform notarial acts in his own name and on his own behalf, in the name and on behalf of his spouse, him and his relatives (parents, children, grandchildren).

An interested person who believes that a notarial act performed or a refusal to perform a notarial act is illegal shall have the right to file a complaint about this with the district (city) people's court at the location of the state notary's office (notary engaged in private practice).

A dispute on the law that has arisen between interested parties, based on a notarial act performed, is considered by a court of general jurisdiction or an arbitration court in the course of action proceedings.

Author: Gatin A.M.

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