The concept of civil proceedings, its purpose and objectives. Civil proceedings are the procedure for civil proceedings carried out on the basis of the norms of civil procedural law. Civil cases are understood as cases arising from a wide range of legal relations - constitutional, civil, family, labor, housing, land, environmental and other legal relations, as well as other cases provided for in Art. 22 Code of Civil Procedure of the Russian Federation.
The purpose of civil proceedings is to protect violated or disputed rights, freedoms and legitimate interests of citizens and organizations of the Russian Federation as a whole and its subjects, as well as municipalities and other persons who are subjects of civil, labor or other legal relations. correct and timely consideration and resolution of civil cases strengthening the rule of law and law and order prevention of offenses formation of respectful attitude to the law and court OBJECTIVES
Civil procedural form. The characteristic features of the civil procedural form are that: - the procedure for considering and resolving civil cases is predetermined by the norms of civil procedural law; - persons interested in the outcome of the case enjoy the right to participate in the proceedings of the case and to defend their rights and interests on the principles of equality and competition; - the court decision on the case must be based on the facts established in the court session with the help of evidence and comply with the law.
Civil procedural form. The civil procedural form of protection of rights provides the parties interested in the outcome of the case with certain legal guarantees of the legality of resolving the dispute, equality of procedural rights and procedural duties. It 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, to make legal and reasoned decisions in the court session in compliance with the procedural guarantees established by law or other normative acts for the persons participating in the case.
Sources of civil procedural law. Constitution of the Russian Federation Art. 19, 22, 26, 32, 47, 71, etc. International treaties with the participation of the Russian Federation International Pact on Civil and Political Rights, Eurasian Convention on the Protection of Human Rights and the basis clear freedom, the Minsk Convention of the CIS countries of 1993, etc. Federal Constitutional Laws (FKZ) FKZ "On the judicial system of the Russian Federation", FKZ "On the Constitutional Court of the Russian Federation", FKZ "On military courts of the Russian Federation", "On Courts of General Jurisdiction in the Russian Federation "The Civil Procedure Code of the Russian Federation (Code of Civil Procedure of the Russian Federation) The Code of Civil Procedure of the Russian Federation regulates in detail the process of administering justice in civil cases. Industry-specific codified normative acts Civil Code of the Russian Federation (Civil Code of the Russian Federation), Family Code of the Russian Federation (IC RF), Labor Code (Labor Code of the Russian Federation), Tax Code of the Russian Federation (Tax Code of the Russian Federation), etc. Federal Laws of the Russian Federation (Federal Law of the Russian Federation) FZ "On Justices of the Peace in the Russian Federation", the Law "On the Status of Judges in the Russian Federation", Federal Law "On the Prosecutor's Office of the Russian Federation" "On Arbitration Courts in the Russian Federation", "On an Alternative Procedure for the Settlement of Disputes with the Participation of a Mediator ( mediation procedure ", etc.
Principles of civil procedural law. Principles of the organization of justice Administration of justice only by courts (Art. 118 of the Constitution of the Russian Federation, Art. 5 of the Code of Civil Procedure of the Russian Federation). Equality of all before the law and court (Article 19 of the Constitution of the Russian Federation, Article 6 of the Code of Civil Procedure of the Russian Federation). Individual and collegial consideration of civil cases (Article 7 of the Code of Civil Procedure of the Russian Federation). Independence of judges (article 120 of the Constitution of the Russian Federation, article 8 of the Code of Civil Procedure of the Russian Federation). Language of civil proceedings (Art. 71,118 of the Constitution of the Russian Federation, Art. 9 of the Code of Civil Procedure of the Russian Federation). The publicity of the trial (Article 123 of the Constitution of the Russian Federation, Article 10 of the Code of Civil Procedure of the Russian Federation). Immunity of judges (Article 122 of the Constitution of the Russian Federation). Functional principles Principle of legality (Article 15 of the Constitution of the Russian Federation, Articles 1, 2, 11 of the Code of Civil Procedure of the Russian Federation, etc.). Dispositive principle (Articles 3, 4, 39, 44, 137 of the Code of Civil Procedure of the Russian Federation). The principle of competitiveness and equality of the parties (clause 3 of article 123 of the Constitution of the Russian Federation, article 12 of the Code of Civil Procedure of the Russian Federation). Immediacy, orality and continuity of the trial (Art. 157 Code of Civil Procedure of the Russian Federation).
Types of civil proceedings In civil proceedings, civil cases are considered that are heterogeneous in their material and legal nature, therefore, the following types are distinguished. Proceedings in absentia Special proceedings Proceedings for consideration of applications for awarding compensation for violation of the right to legal proceedings within a reasonable time or the right to execute a court decision within a reasonable time Proceedings in cases arising from public relations Order proceedings Proceedings on challenging arbitral awards and issuing writs of execution for compulsory execution of decisions of arbitration courts Proceedings on the recognition and enforcement of decisions of foreign courts, foreign arbitral awards Proceedings related to the execution of decisions of the court and other bodies
The stages of civil procedure are a certain part, united by a set of procedural actions aimed at achieving an independent (final) goal Initiation of proceedings on the case Preparation of the case for trial Litigation Revision of court decisions and determinations that have not entered into legal force (appeal proceedings) Revision of acts of justice by a court of a supervisory instance Revision of court decisions that have entered into legal force due to newly discovered or new circumstances Revision of court decisions and rulings that have entered into legal force (cassation proceedings)
Civil procedural legal relations: concept, subjects, grounds for occurrence Civil procedural legal relations are social relations regulated by the norms of civil procedural law that arise in the course of administering justice between the court, on the one hand, and other participants in the proceedings, on the other. Signs of procedural legal relations: 1. Arise on the basis of norms of civil procedural law; 2. There are between the court, on the one hand, and a specific participant in the process, on the other; 3. Consolidate the mutual behavior of the court and other participants in the process when the court administers justice in a civil case; 4. Provided with both civil - procedural and civil - legal, administrative - legal and criminal - legal sanctions.
Objects of procedural legal relations An object in civil procedural legal relations is understood as what they are aimed at. The general object is a dispute over the right between participants in a substantive legal relationship, which must be resolved by the court in legal proceedings, as well as the requirement to establish legal facts. or other circumstances in cases of special proceedings. Special objects include those "benefits", "results" to achieve which any legal relationship is directed
Subjects of civil procedural legal relations All participants in proceedings in a specific civil case are subjects of civil procedural legal relations arising in connection with its consideration. Depending on which side of the legal relationship these subjects act on, they can be divided into two groups: 1) court (collegial or sole); 2) other participants in the process (persons participating in the case and persons assisting in the administration of justice).
Subjects of civil procedural legal relations The court is the decisive and determining subject of civil procedural legal relations. All participants in the process perform procedural actions under his control. The subjects of procedural relations are the courts of the first and second instances, as well as the courts reviewing cases by way of supervision. Persons participating in the case, third parties, the prosecutor, persons applying to court for the protection of the rights, freedoms and legal interests of others, applicants and other interested persons in cases of special proceedings and in cases arising from public legal relations Persons assisting in the implementation justice witnesses, experts, translators, representatives, specialists
Preconditions for the emergence of civil procedural legal relations Three prerequisites are required for the emergence of civil procedural legal relations: Norms of civil procedural law Legal facts Legal personality of participants in legal relations
civil proceedings legal relationship supervisory
In legal science, there are opinions on the allocation of types of civil procedure, different from the opinion of the legislator. So, T.E. Abova, depending on the nature of the cases, distinguishes the following types of production:
action proceedings (including simplified proceedings);
proceedings on cases arising from administrative and other public legal relations;
special production;
insolvency (bankruptcy) proceedings;
proceedings in cases related to the execution of judicial acts of arbitration courts;
proceedings on cases, the decisions on which were made by Russian arbitration courts;
proceedings on cases of recognition and enforcement of decisions made by foreign courts and arbitration tribunals.
D.Kh. Valeev singles out material-legal relations as the basis for dividing legal proceedings into separate types. At the same time, in the civil process, they distinguish two main blocks of cases: related to a particular dispute and indisputable cases; the types of production are offered as follows:
action proceedings;
proceedings on cases arising from public relations;
special production;
order production;
proceedings on cases on challenging the decisions of arbitration courts and on the issue of writs of execution for compulsory execution of decisions of arbitration courts;
proceedings in cases related to the execution of court orders and decisions of other bodies.
This discrepancy with the norms of law is largely due to the peculiarity of the material legal relations under consideration, which predetermine the procedural features of the consideration of such disputes in court. In the process of resolving cases, it often turns out that the allocation of types of production by the theoretician legislator often does not correspond to real issues that arise directly during their consideration. Therefore, in legal science, the question of the types of civil procedure is debatable, and the legal norms contained in the law are criticized.
Thus, the civil procedural legislation distinguishes between seven types of civil proceedings. Each of them has specific features that are different from other types of the process, such as the subject, the order of the process, the presence of certain stages in it.
Distinguishing several types of civil procedure is aimed at using the resources of justice in civil cases as efficiently as possible. So, there is no need to initiate action proceedings, where the participants in the process go through all the stages in full, at the request of the creditor, based on a notarized transaction. Notarization of a transaction in most cases excludes a dispute about the obligations of the transaction. Therefore, in this case, it is more expedient to initiate an order proceeding than a claim.
And also, highlighting each of the types of civil proceedings, the legislator pursues certain goals, endows each of them with special features, which makes it possible to make justice in civil cases more flexible, but at the same time full-fledged.
However, legal practitioners and theorists often consider the provisions of the law more broadly or narrowly, or they do not share the views of the legislator at all. This also applies to issues of civil procedure, namely, its types. So, legal scholars have proposed more than one classification of types of civil procedure, which differs from the one enshrined in law. These alternative classifications are based on the specifics of the subject matter proceedings. And, as is commonly believed, practicing lawyers are faced with these features more often than the legislator.
Thus, the nature of the divergence in the opinions of scientists and legislators becomes clear to us. Therefore, many issues in legal science remain controversial, and types of civil procedure are no exception.
legally relevant.
4. Problem number 2
The director of the welding equipment plant appealed to the labor and social affairs committee of the regional administration with a request to ban the activities of the trade union created at the enterprise. However, he referred to the fact that the trade union was not registered anywhere, which violated Art. 8 of the Law on Trade Unions. In addition, the director explained that the trade union organization interferes with its competence, demanding approval of certain local regulations containing labor law norms, and also prohibiting him from dismissing some workers.
What is the procedure for creating trade unions established by current legislation? Where and in what order are trade union organizations registered? Who and under what conditions can prohibit the activities of a trade union? Does the trade union organization go beyond its competence in the requirements for the employer?
1. Objects of civil legal relations - those benefits about which subjects of law enter into legal relations with each other, or what their subjective rights and obligations are directed to. Objectless legal relations do not exist. All benefits can be divided into material(natural objects, things created by human labor and satisfying property interests) and intangible(honor, dignity, good name, works of science, art, etc.).
Types of objects of civil rights:
1) things, including money and securities, other property, including property rights; works and services;
2) information;
3) the results of intellectual activity, including exclusive rights to them (intellectual property);
4) intangible goods.
Depending on objects are divided from turnover capacityon:
1) objects withdrawn from circulation, the alienation of which is not allowed (these objects are directly indicated in the law). Such things can only be owned by the state and are transferred for use on the basis of administrative acts of the state and its competent authorities;
2) objects limited in circulation, which can only belong to certain participants in the turnover or which are allowed in circulation by special permission (to be determined in the manner prescribed by law). Can be acquired for use only according to certain rules established by law (for example, a permit to carry weapons);
3) freely circulating objects that can be freely alienated by way of universal succession or in another way. Depending on from the connection with the earth, things are dividedon:
1) movable (structurally not connected to the ground);
2) immovable (firmly connected with land: buildings, structures. An enterprise is recognized as immovable property as a property complex, which includes all types of property intended for its activities, including land plots, buildings, structures, equipment, inventory, raw materials, products, claims, debts, company name, trademarks, service marks).
Things are divided according to their physical propertieson:
1) consumed (in the process of use they lose their consumer qualities in whole or in parts), non-consumable (when used for their intended purpose, they are gradually depreciated in the course of a long time: residential houses, cars) things;
2) complex (consisting of a multitude of heterogeneous things that form a single whole: a car) and simple;
3) divisible (things that do not change their economic purpose during division) and indivisible (during division they lose their original purpose);
4) things defined by generic characteristics and individually defined (things that have some inherent characteristics and properties only);
5) the main thing (it is in economic or other dependence on another thing (things), but can function without it) and belonging (intended to serve the main thing). Fruits (the result of the organic development of animate or inanimate things), products (obtained in the process of economic use of a thing), income (cash receipts from the participation of a thing in civil circulation).
2. The relations that develop between the subjects of law when combining their contributions (property, money, securities, etc.) and organizing joint activities to achieve a common goal, are one of the varieties of civil relations. Since these obligations unite as several or more participants, this agreement can be both bilateral and multilateral. Moreover, each participant acts simultaneously as a debtor and a creditor. For example, he may be obliged to transfer property and have the right to demand labor participation from the other party under a joint activity agreement
3.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 law and parties with mutually exclusive property or personal non-property interests.
This proceeding is applied 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 based on lost documents, etc.
The following cases are considered in special proceedings:
1) on the establishment of facts of legal significance:
2) on the adoption (adoption) of a child;
3) on the recognition of the citizen as missing or on the declaration of the citizen as deceased;
4) on limiting the legal capacity of a citizen, on recognizing a citizen as incompetent, on limiting or depriving a minor aged 14 to 18 years of the right to independently dispose of their income;
5) on declaring a minor fully capable (emancipation);
6) on the recognition of a movable thing as ownerless and on the recognition of the right of municipal ownership to an ownerless immovable thing;
7) on the restoration of rights for lost bearer securities or order securities (call proceedings);
8) on compulsory hospitalization of a citizen in a psychiatric hospital and compulsory psychiatric examination;
9) on the introduction of corrections or changes in the records of acts of civil status:
a) on applications for performed notarial acts or refusal to perform them;
b) on applications for the restoration of the 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 claim 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 claim, but a statement, since the applicant has no substantive legal claims to other persons;
2) in special proceedings there are no such institutions as waiver of a claim, recognition of a claim, conclusion of an amicable agreement, change of the subject or basis of 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 .;
3) the applicant and interested persons are referred to the persons participating in the special proceedings;
4) a limited number of persons have the right to go to court in these cases;
5) the occurrence of a dispute about the right, subordinate to the courts, prevents the consideration of the case in a special proceeding and serves as the 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 by way of action.
Ticket number 3
The procedure and methods for creating legal entities.
Special production - a type of civil proceedings, which differs from a claim by the absence of a dispute about, and, as a consequence, by the absence of disputing parties with opposite legal interests. Special production is characterized as non-disk, one-sided production.
Essence of Special Manufacturing:
- civil cases are being considered, in which it is necessary to judicially confirm presence or absence or circumstances, on which the emergence, change or termination of personal or property rights depends.
Characteristic features of special production:
- there is no dispute about the right or substantive claim of one person to another, respectively, there is no plaintiff and defendant, third parties;
- there is no claim and institutions related to the claim form of protection of rights;
- to a lesser extent, the principle of competition is manifested;
- the principle of dispositiveness does not fully apply (the rules of action on amicable agreement, recognition of a claim, increase or decrease in the amount of claims, securing a claim are not applied).
At the same time, in such cases, it is possible to refuse the application, change its basis or subject.
According to Art. 262 of the Code of Civil Procedure of the Russian Federation in the order of special proceedings, the court considers cases:
- on the establishment of facts of legal significance;
- on adoption of a child;
- on recognizing a citizen as missing or declaring a citizen as deceased;
- on a citizen, on recognizing a citizen as incapable, on restricting or depriving a minor between the ages of fourteen and eighteen of the right to independently dispose of his or her income;
- on declaring a minor fully capable (emancipation);
- on the recognition of a movable thing as ownerless and on the recognition of the right of municipal ownership to an ownerless immovable thing;
- on the restoration of rights for lost bearer securities or order securities (call-out proceedings);
- on the introduction of corrections or changes in the records of acts of civil status;
- on applications for notarial acts committed or refusal to perform them;
- on applications for the restoration of the lost court proceedings.
Federal laws may include other cases as well.
In special proceedings, civil cases are considered, in which presence or absence of legal facts, on which the emergence, change or termination of personal or property rights of citizens depends, or the presence or absence of an indisputable right is confirmed, and the legal status of a citizen is determined.
In a special procedure, civil cases are considered, in which it is necessary to confirm presence or absence of an indisputable right (establishment of fact possession and use of immovable property, cases on the restoration of rights for lost bearer securities or order securities, cases on the restoration of lost production). In these categories of cases, the court decides not only questions of fact, but also of law. In these cases, the protection of the right cannot be carried out in a lawsuit, since there is no dispute about the right, and the person concerned does not make any claims against anyone.
In special proceedings, cases are considered in which the court establishes legal status of a citizen: in some cases, a citizen is recognized as incapacitated or partially capable; in others, it is declared dead or is recognized as missing.
In cases of special proceedings, a dispute about a fact is possible, which requires judicial confirmation, since the fact established by the court is not always obvious, and there are conflicting evidences and opposite judgments regarding its existence. In all such cases, the court must make sure of the existence or non-existence of facts by checking and comparing the available evidence, identifying contradictions in the judgments of interested parties. Thus, dispute about fact in special proceedings is possible, and the presence or absence of a fact must be established by the court if the dispute about the fact did not turn into a dispute about law.
If, when submitting an application or considering a case in a special proceeding, it is established that there is a dispute about the right subordinate to the court, the court must issue a ruling on leaving the application without consideration and explain to the applicant and other interested parties their right to resolve the dispute in the course of action (part 3 of Art. 263 Code of Civil Procedure of the Russian Federation).
Simplified manufacturing - this is a special procedure for considering cases, provided for by Chapter 21.1 of the Code of Civil Procedure of the Russian Federation, according to which courts of general jurisdiction consider cases of action. In contrast to the consideration of cases by way of summary procedure does not exclude the existence of a dispute about the law.
Cases listed in part one of Article 232.2 of the Code of Civil Procedure of the Russian Federation, and with the consent of the parties - and other cases are considered by justices of the peace, other courts of general jurisdiction in the manner of simplified proceedings.
The amount of money collected on the basis of clause 3 of part one of Article 232.2 of the Code of Civil Procedure of the Russian Federation can be recalculated on the date of the court decision, as well as on the date of actual fulfillment of the monetary obligation.
By way of simplified proceedings, courts of general jurisdiction may consider cases that are not included in the list contained in part one of Article 232.2 of the Code of Civil Procedure of the Russian Federation, if the parties have agreed to consider such a case according to the rules of simplified procedure and if there are no circumstances specified in parts three and four of Article 232.2 of the Code of Civil Procedure RF.
Coordination of the consideration of the case in the procedure of summary proceedings is carried out in the course of preparing the case for court proceedings by means of a petition by a party to this effect and the submission of the consent of the other party or the submission to the court of the consent of the parties to the consideration of the case in the procedure of summary proceedings, proposed on the initiative of the court (clause 5.1 of the first part of Article 150, article 152, part two of article 232.2 of the Code of Civil Procedure of the Russian Federation).
The consent of the parties to the consideration of the case by way of summary procedure must be obvious, for example, follow from the written statement of the parties or recorded in the minutes.
The absence of objections by the parties to the court's proposal to consider the case by way of summary procedure does not in itself constitute consent to the consideration of the case in that order.
Cases related to state secrets are not subject to consideration by way of simplified proceedings; cases on disputes affecting children's rights; cases of compensation for harm caused to life or health; cases (part three of Article 232.2 of the Code of Civil Procedure of the Russian Federation), even if the parties agreed to consider such a case according to the rules of simplified procedure.
Features of consideration of cases in the order of simplified proceedings in civil proceedings
Cases by way of simplified proceedings are considered according to the rules of claim proceedings with the peculiarities established by Chapter 21.1 of the Code of Civil Procedure of the Russian Federation, in particular, court sessions on these cases are not appointed, and therefore the persons participating in the case are not notified of the time and place of the court session, recording in writing and using the means of audio recording, the rules on the postponement of the proceedings (court proceedings), on a break in the court session, on the announcement of a court decision are not applied (Article 232.1 of the Code of Civil Procedure of the Russian Federation).
When accepting a statement of claim (statement) for proceedings, the court decides whether the case belongs to the categories of cases specified in part one of Article 232.2 of the Code of Civil Procedure of the Russian Federation.
If on formal grounds the case belongs to the categories of cases named in part one of Article 232.2 of the Code of Civil Procedure of the Russian Federation, then it must be considered in the manner of simplified proceedings, as indicated in the ruling on the acceptance of the statement of claim (statement) for production (part two of Article 232.3 of the Code of Civil Procedure of the Russian Federation ). The consent of the parties to consider this case in this order is not required.
The indication in the statement of claim of third parties in itself is not an obstacle to its consideration in the simplified procedure (part four of Article 232.2 of the Code of Civil Procedure of the Russian Federation).
If the case does not belong to the categories of cases to be considered in the summary procedure, the court, having accepted the statement of claim (statement) for proceeding according to the general rules of action, begins preparing the case for (Articles 133 and 147 of the Code of Civil Procedure of the Russian Federation).
In the ruling on the acceptance of the statement of claim (statement) for production, on the preparation of the case for trial, the court may invite the parties to consider the case in a summary procedure (part two of Article 232.2 of the Code of Civil Procedure of the Russian Federation).
When filing a statement of claim (statement) at the request, subject to consideration or considered in the order of the order proceedings, the plaintiff or the applicant must indicate in the statement of claim (statement) on the refusal to accept the application for issuing (issuing) a court order or canceling the court order and attach copies of the relevant definitions.
If there is no copy of the corresponding definition, but the applicant applied for the issuance of a court order, such a statement of claim (statement) must be left without movement (Article 136 of the Code of Civil Procedure of the Russian Federation).
If these requirements were not considered in the order of the order production, then the statement of claim (statement) must be returned (clause 1.1 of the first part of Article 135 of the Code of Civil Procedure of the Russian Federation).
Cases by way of summary proceedings are considered by a court of general jurisdiction within a period not exceeding two months from the date of receipt of the statement of claim (statement) by the court (part one of Article 154 of the Code of Civil Procedure of the Russian Federation).
In the ruling on the acceptance of the statement of claim (statement) for proceeding, the court indicates the consideration of the case by way of summary procedure and establishes the following terms for the submission of evidence and documents by the persons involved in the case to the court and to each other (parts two and three of Article 232.3 of the Code of Civil Procedure of the Russian Federation):
1) fifteen days or more - both for the presentation by the defendant of a response (objections) to the statement of claim (statement), and for the presentation by any person participating in the case of evidence, to which it refers as the basis of its claims and objections;
2) thirty days or more - to submit only additional documents containing explanations on the merits of the stated requirements and objections in support of their position, but not containing references to evidence that was not disclosed within the time period set by the court.
The time frame for the performance of these actions can be determined by the court of general jurisdiction by specifying the exact calendar date or the period calculated from the date of the ruling on the acceptance of the statement of claim (statement) for proceedings or ruling on the transition to the consideration of the case by way of simplified proceedings.
When determining the length of this period, one should take into account the time for the delivery of postal correspondence and the general period for consideration of the case in accordance with the simplified procedure. The period between the moments of the end of the first and second terms must be at least fifteen days.
When calculating the deadlines for the submission of documents by persons participating in the case to the court and to each other, it should be borne in mind that such deadlines in the courts of general jurisdiction are calculated in calendar days (Articles 107 and 108, parts two and three of Article 232.2 of the Code of Civil Procedure of the Russian Federation).
Persons participating in a case considered by way of simplified proceedings are deemed to have received copies of the ruling on the acceptance of the statement of claim (statement) for proceedings and consideration of the case by way of simplified proceedings, if, on the day of the decision, the court has evidence that the corresponding copies have been delivered to them, sent by registered mail with delivery notice (part one of Article 113 of the Code of Civil Procedure of the Russian Federation), as well as in the cases specified in parts two - four of Article 116 of the Code of Civil Procedure of the Russian Federation, or other evidence of the receipt by the persons participating in the case of information about the commenced trial.
Citizens bear the risk of consequences of not receiving a copy of the said ruling due to circumstances that depend on them.
If by the day of the decision on the case considered in the summary procedure, the relevant information has not been received by the court, or it has been received, but it clearly indicates that the person did not have the opportunity to familiarize himself with the case materials and submit objections and evidence to substantiate his position in In the procedure provided for in part four of Article 232.3 of the Code of Civil Procedure of the Russian Federation, the court makes a ruling on the consideration of the case according to the general rules of claim proceedings, in connection with the need to clarify additional circumstances or study additional evidence (part four of Article 232.2 of the Code of Civil Procedure of the Russian Federation).
When applying part four of Article 232.3 of the Code of Civil Procedure of the Russian Federation, it is necessary to proceed from the fact that each person participating in the case, presenting evidence and documents, must take all measures in his control to ensure that, before the expiration of the period established in the ruling, the court received the response to a statement of claim, response to a statement, evidence and other documents (including in electronic form) or information on the direction of such documents (for example, a telegram, telephone message, etc.). Sending documents to the court and to the persons participating in the case by mail without taking into account the time of delivery of the correspondence cannot be recognized as justification for the impossibility of timely submission of the document to the court, since the relevant actions relate to circumstances depending on the person involved in the case.
Based on the peculiarities of the consideration of cases in the summary procedure, the principles of adversariality, equality and good faith of the parties, when submitting the said evidence, documents and objections to a court of general jurisdiction, the persons participating in the case are obliged to send them to each other, as well as submit documents to the court confirming sending such evidence, documents and objections to other persons involved in the case (part four of Article 1, Article 12, part one of Article 35, parts two and three of Article 232.2 of the Code of Civil Procedure of the Russian Federation).
If, along with evidence, documents and objections, documents confirming their sending to other persons involved in the case are not presented to the court of general jurisdiction, then such evidence, documents and objections are not accepted by the court of general jurisdiction and must be returned, as a determination is made.
When considering a case by way of simplified proceedings, they are presented taking into account the provisions of Articles 71, 72 of the Code of Civil Procedure of the Russian Federation.
The court, within a two-month period for considering the case, has the right, if necessary, to establish additional time limits for the submission of original documents at the request of the court, for the reclamation of evidence according to the rules of parts two - four of Article 57 of the Code of Civil Procedure of the Russian Federation.
If evidence and documents arrived at the court after the expiration of the time period established by the court, such evidence and documents are not accepted and not considered by the court and are returned to the persons who submitted them, except for cases when the deadlines for the submission of such evidence and other documents were missed for valid reasons (part the fourth article 232.3 of the Code of Civil Procedure of the Russian Federation).
On the return of such documents, the court of general jurisdiction is determined (part four of Article 1 of the Code of Civil Procedure of the Russian Federation, part 4 of Article 228 of the Arbitration Procedure Code of the Russian Federation).
If the impossibility of submitting evidence (documents) to the court, which, in the court's opinion, are important for the correct resolution of the dispute, is recognized by the court as justified for reasons beyond the control of the person participating in the case (for example, the need to present evidence arose as a result of familiarization with the evidence presented by another person participating in the case at the end of the term for the submission of evidence), such evidence (document) is taken into account by the court when it was received by the court no later than the date of the decision on the case and, if it is possible for the persons participating in the case, to get acquainted with such evidence (document ), and also express a position in relation to it.
In this case, the court, within a two-month period for considering the case, establishes a reasonable period for familiarizing the persons participating in the case with the evidence (documents) presented.
If the court does not have the opportunity to establish the time period necessary for familiarizing the persons participating in the case with the evidence (documents) presented, the court has the right to issue a ruling on the consideration of the case according to the general rules of claim proceeding, in connection with the need to clarify additional circumstances or study additional evidence ( part four of Article 232.3 of the Code of Civil Procedure of the Russian Federation).
Applications and petitions are considered by a court of general jurisdiction in the manner prescribed by Art. 166 of the Code of Civil Procedure of the Russian Federation without a court hearing and taking into account other features of the consideration of the case by way of summary procedure.
The court of general jurisdiction shall consider the application and the petition within a reasonable time, providing the persons participating in the case with the opportunity to state their objections, and, based on the results of their consideration, make a determination.
Based on the peculiarities of the consideration of cases in the procedure of simplified proceedings, the principles of adversariality, equality and good faith of the parties, when sending applications and petitions to a court of general jurisdiction, the persons participating in the case are obliged to send them to each other, as well as submit to the court documents confirming the direction of these statements and petitions to other persons involved in the case (part four of Article 1, Article 12, part one of Article 35, parts two and three of Article 232.3 of the Code of Civil Procedure of the Russian Federation).
When considering a case by way of simplified proceedings, the parties have the right to conclude.
The party or parties may submit to the court, including in electronic form, the draft of the settlement agreement signed by them before the expiration of the period for considering the case in the manner of simplified proceedings. In this case, the court does not proceed to the consideration of the case according to the general rules of the claim proceeding, but appoints a court session to consider the issue of approving an amicable agreement with the summons of the persons involved in the case, as well as with the implementation of recording in writing and using audio recording means (part two of Article 39, article 173 of the Code of Civil Procedure of the Russian Federation).
If the amicable agreement is not approved at this court session, the court issues a ruling on the consideration of the case according to the general rules of the claim proceeding or according to the rules of proceedings in cases arising from administrative and other public legal relations, on the basis of clause 2 of part four of Article 232.2 of the Code of Civil Procedure of the Russian Federation.
Transition to the consideration of the case according to the general rules of claim proceedings
The transition to the consideration of the case according to the general rules of the claim proceeding is carried out by the court on its own initiative or at the request of the person participating in the case, if there are grounds provided for by part four of Article 232.2 of the Code of Civil Procedure of the Russian Federation.
The ruling on the consideration of the case according to the general rules of the claim proceeding must contain the justification for the conclusion of the court on the impossibility of considering the case by way of simplified proceedings.
If, in the course of the consideration of the case by way of simplified proceedings, the plaintiff submits a petition to increase the amount of the claim, as a result of which the value of the claim exceeds the limits established by paragraph 1 of part one of Article 232.2 of the Code of Civil Procedure of the Russian Federation, the court proceeds to the consideration of the case according to the general rules of the claim.
If, as a result of an increase in the amount of claims, the value of the claim does not exceed the established limits, the question of the need to proceed to the consideration of the case according to the general rules of the claim proceeding shall be decided by the court, taking into account the factual possibility of securing the right of the defendant to submit objections and evidence in support of his position in the manner prescribed by part two article 232.3 of the Code of Civil Procedure.
Circumstances preventing the consideration of the case by way of simplified proceedings, specified in part four of Article 232.2 of the Code of Civil Procedure of the Russian Federation (for example, the need to clarify additional circumstances or study additional evidence), can be identified both when accepting a statement of claim (statement) for proceeding, and during consideration this case.
If such circumstances are revealed, the court issues a ruling on the consideration of the case according to the general rules of the claim proceeding, and indicates in it the actions that must be performed by the persons participating in the case, and the timing of these actions (part five of Article 232.2 of the Code of Civil Procedure of the Russian Federation). This determination is not subject to appeal.
This ruling may be made, inter alia, based on the results of the consideration by the court of the petition of the person participating in the case, who indicated the presence of one of the circumstances provided for in paragraphs 1 and 2 of part four of Article 232.2 of the Code of Civil Procedure of the Russian Federation. This petition may be submitted before the end of the consideration of the case on the merits.
If, in the course of the consideration of the case by way of simplified proceedings, the petition for the entry into the case of a third party, both declaring independent claims regarding the subject of the dispute and not declaring them, is satisfied, the court shall issue a ruling on the consideration of the case according to the general rules of claim proceedings (part four of Article 232.2 of the Code of Civil Procedure of the Russian Federation) ...
Satisfaction of a party's petition to attract a third party to participate in the case or to involve him on the initiative of the court (part one of Article 43 of the Code of Civil Procedure of the Russian Federation) in itself is not a basis for proceeding to the consideration of the case according to the general rules of action.
When considering a case by way of simplified proceedings, third parties enjoy procedural rights and bear the procedural obligations of the parties (part one of Article 42, part one of Article 43 of the Code of Civil Procedure of the Russian Federation, part 2 of Article 50, part 2 of Article 51 of the Arbitration Procedure Code of the Russian Federation). In this regard, a ruling on his involvement in the case is sent to a third person participating in the consideration of the case by way of simplified proceedings.
Simultaneously with this determination, in relation to part 2 of Article 228 of the APC RF, the specified person is sent the data necessary for his identification, in order to access the case materials in electronic form.
Judicial acts on cases considered by way of summary procedure in civil proceedings
A decision on a case considered by way of summary procedure is taken by a court of general jurisdiction not earlier than the expiration of the time limits established for the presentation of evidence and other documents, but before the expiration of a two-month period for considering the case (part five of Article 232.3 of the Code of Civil Procedure of the Russian Federation).
The date of issuance and signing by the court is considered the date of the decision (part one of Article 232.4 of the Code of Civil Procedure of the Russian Federation).
A decision made by issuing (signing) the operative part in a case considered in the simplified procedure must contain, among other things, the basis for the occurrence of the obligation (for example, an agreement indicating the details), the composition of the debt to be recovered (the amount of the principal debt, interest and penalties) , the period for which the collection was made (Article 198 of the Code of Civil Procedure of the Russian Federation).
By virtue of the second part of Article 232.4 of the Code of Civil Procedure of the Russian Federation, the court of general jurisdiction, which made a decision on a case considered by way of summary procedure, draws up a reasoned decision both on the application of the persons participating in the case, their representatives, and in the case of filing an appeal or presentation.
The court of general jurisdiction has the right to make a reasoned decision on its own initiative. In this case, the decision comes into legal force and the period for its appeal is calculated from the date of the decision by issuing (signing) the operative part.
If the deadline for filing an appeal or presentation has been missed, then a reasoned decision on the case is made only if the specified deadline is restored.
For a good reason, the time limit for filing an application for drawing up a reasoned decision (for example, if the person participating in the case does not have information about the judicial act adopted in the summary procedure) may be restored by the court at the request of the person participating in the case in the manner provided for in Article 112 of the Code of Civil Procedure of the Russian Federation. Taking into account the peculiarities of the simplified procedure, this petition is considered without a court hearing.
In the absence of a petition for the restoration of the missed deadline, as well as in case of refusal to restore it, the court issues a ruling on the return of an application for drawing up a reasoned decision, which can be appealed (part five of Article 112, paragraph 2 of part one of Article 331 of the Code of Civil Procedure of the Russian Federation).
An application for drawing up a reasoned decision filed before the court renders the operative part of the decision (for example, contained in the text of the statement of claim, response to the statement of claim) does not entail the court's obligation to draw up a reasoned decision (part three of Article 232.4 of the Code of Civil Procedure of the Russian Federation).
A reasoned decision can only be made by a judge who signed the operative part of the decision (Article 157 of the Code of Civil Procedure of the Russian Federation).
Since in the case of filing an appeal, presentation in a case considered by way of summary procedure, the drawing up by a court of general jurisdiction of a reasoned decision is mandatory, the appeal instance of a court of general jurisdiction in case of an appeal against the operative part of a decision in a case considered by way of summary procedure, and in the absence of the possibility at the court of first instance to prepare a reasoned decision (for example, in the event of termination of the powers of a judge) cancels such a decision and sends the case to the court of first instance for consideration according to the general rules of claim proceedings (part three of Article 335.1 of the Civil Procedure Code of the Russian Federation)
A decision made by passing (signing) the operative part, a reasoned decision (if it is drawn up) in a case considered by a court of general jurisdiction in accordance with the procedure of simplified proceedings, are posted on the information and telecommunication network "Internet" no later than the next day after their adoption or production ( part four of article 1 of the Code of Civil Procedure of the Russian Federation, part 1 of article 229 of the Arbitration Procedure Code of the Russian Federation).
Determinations in cases considered in the summary procedure (for example, on termination of proceedings on a case, on leaving an application without consideration, on the issue of court costs) are made by the judge signing the operative part. In this case, a reasoned determination is drawn up according to the rules of Article 232.4 of the Code of Civil Procedure of the Russian Federation (part four of Article 1 of the Code of Civil Procedure of the Russian Federation).
An application on the issue of court costs incurred in connection with the consideration of the case by way of summary procedure, filed during the period of the proceedings on the case, is subject to consideration together with the main claim, regardless of the amount of the declared court costs, which is reflected in the decision adopted by issuance (signing) operative part.
If the issue of court costs is not resolved, but the claim for the recovery of court costs was filed and evidence supporting it was presented to the court, then the court has the right to make an additional decision in the manner prescribed by Article 201 of the Code of Civil Procedure of the Russian Federation without a court hearing and without notifying the persons participating in the case.
The decision of a court of general jurisdiction in a case considered by way of summary procedure is carried out after its entry into legal force (Article 209, Article 210, part one of Article 232.1 of the Code of Civil Procedure of the Russian Federation) or after its adoption in cases where the court applies a decision to immediate execution (Articles 211, 212 Code of Civil Procedure of the Russian Federation).
Appealing against judicial acts adopted by way of simplified proceedings in civil proceedings
Submissions to judicial acts in cases considered in the summary procedure are considered by the court of appeal according to the rules for the consideration of the case by the court of first instance in summary proceedings with the specifics provided for in Article 335.1 of the Code of Civil Procedure of the Russian Federation.
In particular, such an appeal or presentation is considered by a judge alone without holding a court session, without notifying the persons participating in the case about the time and place of the court session, without taking minutes in writing or using audio recording means. At the same time, the rules of parts one and two of Article 232.4 of the Code of Civil Procedure of the Russian Federation are not applied.
The court session is held with the keeping of minutes in writing and the implementation of minutes using the means of audio recording if, taking into account the nature and complexity of the issue in question, as well as the arguments of the appeal, presentation and objections to them, the court summons the persons participating in the case to the court meeting (part one of article 335.1 of the Code of Civil Procedure of the Russian Federation).
By virtue of Articles 325 and 335.1 of the Code of Civil Procedure of the Russian Federation, the court of general jurisdiction, which considered the case in the first instance, after receiving the appeal, submission to the court decision in the case considered in the summary procedure, sends copies of the complaint, submissions and attached to the case to the persons participating in the case. him documents and establishes a reasonable time for such persons to submit objections in writing to the appeal, submission to the court of first instance.
Proceeding from the peculiarities of the consideration of cases in the procedure of simplified proceedings, the principles of adversariality, equality and good faith of the parties, when presenting these objections to the first instance of the court of general jurisdiction, the persons participating in the case are obliged to send them to each other, as well as submit to the court documents confirming the direction of these objections to other persons involved in the case (part four of Article 1, Article 12, part one of Article 35, parts two and three of Article 232.3, Article 325 of the Code of Civil Procedure of the Russian Federation).
If in the first instance of a court of general jurisdiction, along with the objections, documents confirming their direction to other persons involved in the case are not presented, then such objections will not be accepted by the court, and a ruling is made about this.
The court of first instance sends the case with the appeal, the presentation and the objections received regarding them to the court of appeal after the expiry of the appeal period and the time limit set by the court for filing objections to the court (part three of Article 325 of the Code of Civil Procedure of the Russian Federation), and notifies the parties involved in the case.
The appellate instance of the court of general jurisdiction considers the case received on the appeal, presentation within a period not exceeding two months from the date of its receipt by the court of appeal (part one of Article 327.2 of the Code of Civil Procedure of the Russian Federation).
Persons participating in the case may be summoned to the court session of the court of appeal, taking into account the nature and complexity of the issue in question, as well as the arguments of the appeal, presentation and objections regarding them (part one of Article 335.1 of the Code of Civil Procedure of the Russian Federation).
When considering an appeal, a court of general jurisdiction may accept additional evidence only if it was received by the court of first instance when considering the case and the court of first instance unreasonably refused to accept this evidence, including because the timing of their the submissions were missed for unjustifiable reasons, or the issue of their acceptance was not considered by the court (Article 335.1 of the Code of Civil Procedure of the Russian Federation).
If, in the process of considering an appeal, submissions are established by the court of first instance, provided for in paragraphs 1, 3 - 5 of part four of Article 330 of the Code of Civil Procedure of the Russian Federation, then the court of general jurisdiction cancels the decision and sends the case to the court of first instance for consideration according to the general rules of claim proceeding, taking into account the specifics consideration of cases in the order of simplified proceedings, enshrined in chapter 21.1 of the Code of Civil Procedure of the Russian Federation (part three of Article 335.1 of the Code of Civil Procedure of the Russian Federation).
If, in the process of considering an appeal, submission by a court of general jurisdiction, the arguments presented in the appeal, submission of arguments that the case considered in the summary procedure was subject to consideration according to the general rules of claim proceedings or according to the rules of proceedings in cases arising from administrative and other public legal relations, the court of general jurisdiction overturns the decision and sends the case to the court of first instance for consideration according to the general rules of the claim procedure (part three of Article 335.1 of the Code of Civil Procedure of the Russian Federation).
Based on the meaning of the simplified procedure, the rulings of the court of first instance, which may be the subject of an independent appeal, are subject to revision according to the rules established by the Code of Civil Procedure of the Russian Federation for appealing against decisions of courts in cases considered by way of simplified proceedings (part one of Article 331, part eight of Article 232.4 of the Code of Civil Procedure of the Russian Federation) ... Such definitions include, for example, a ruling to leave a statement of claim (statement) without consideration, a ruling to terminate the proceedings.
By a court of general jurisdiction, cassation appeals, submissions to decisions on cases considered by way of simplified proceedings, are considered in court, without summoning the persons participating in the case, and without keeping a record (Article 386.1 of the Code of Civil Procedure of the Russian Federation).
Taking into account the nature and complexity of the issue being resolved, as well as the arguments of the cassation appeal, presentation and objections to them, the court, on the basis of part five of Article 386.1 of the Code of Civil Procedure of the Russian Federation, may summon the persons participating in the case to the court session, during which the minutes are kept.
