Method of civil procedural law: dispositive beginning. The concept of civil procedural law and its meaning The method of civil procedural law is dispositive

The method of legal regulation is a very capacious concept, characterized by many components: the procedure for establishing the rights and obligations of the subjects of relevant legal relations, the degree of certainty of their rights, the degree of autonomy of actions, etc.

The method of legal regulation in its most general form is a set of techniques, ways of influencing legal norms and rules on specific social relations.

In legal theory, there are two main methods of legal regulation - imperative and dispositive. They are often associated with two blocks of legal norms, or two legal regimes - public and private.

The dispositive method presupposes legal equality of participants in legal relations. Thus, the participants in the process are endowed with the same amount of procedural rights. The emergence and development of the process, the transition from one stage to another depend on the will of the interested parties. Appealing judicial acts also depends on the will of the interested parties.

The imperative method is a method of authoritative instructions; it is characteristic primarily of power relations, relations between the court and other participants in the process. The court makes authoritative decisions that are subject to enforcement.

Civil procedural law, therefore, actively uses both methods of legal regulation. Because of this, the method of civil procedural law is dispositive-imperative Civil process: Textbook / N.P. Antipov, V.A. Babakov, I.A. Volkova and others; edited by A.G. Kovalenko, A.A. Mokhova, P.M. Filippova. M.: CONTRACT, INFRA-M, 2008. 448 pp..

Civil procedural law regulates social relations by dispositive and permissive method. This means that the initiative for the emergence of civil cases belongs to the interested parties, and not to the court. The court does not initiate civil cases on its own initiative. Appeals against judicial acts and, as a rule, their execution also depend on the will of the interested subjects of procedural law. Most rules of civil procedural law are permissive, not prohibitive. Participants in the process can only occupy one procedural position inherent in them and perform such procedural actions that are permitted and provided for by the norms of procedural law Civil procedure: textbook / V.V. Argunov, E.A. Borisova, N.S. Bocharova and others; edited by M.K. Treushnikova. 5th ed., revised. and additional M.: Statute, 2014. 960 pp..

In connection with the general characteristics of the method of legal regulation of civil procedural law in the educational literature, the opinion has been expressed that in this branch of law the dispositive-permissive method of regulation is used. See: Civil procedure: Textbook / Ed. M.K. Treushnikova. M., 2003. P. 30.. According to another point of view, civil procedural law is characterized by an imperative-dispositive method. See, for example: Civil procedural law: Textbook / S.A. Alekhina, V.V. Blazheev et al. / Ed. M.S. Shakaryan. M., 2004. P. 11; Osokina G.L. Civil process. A common part. M., 2004. P. 24.. E.M. Muradyan writes that the combination of such independent methods as imperativeness and dispositivity is devoid of organicity. In her opinion, permission (legal permission) is characteristic of the sphere of administrative, but not civil procedural law, and in civil proceedings there is dispositiveness, which as a method cannot coexist with the permitting procedure of regulation See: Muradyan E.M. About textbooks on civil procedure // State and Law. 2000. No. 4. P. 119..

In any branch of law there are both imperative and dispositive elements of legal regulation. At the same time, the general characteristics of the method of the legal industry can be based on the most typical, dominant, priority-used means and methods of influencing legal relations. Therefore, a judgment about the imperative-dispositive nature of the method of a branch of law, at first glance, does not reveal the specifics of the method of regulation, since, including opposing methods of legal regulation, it does not ultimately allow us to identify which method is dominant. But a similar conclusion would be fair in relation to branches of law, where generally similar means and methods of legal regulation are applied to all subjects of legal relations (for example, civil law, characterized by the legal equality of subjects of legal relations). However, one of the features of civil procedural legal relations is that here different methods of legal regulation are subject to application to each of the parties who are in an unequal legal position. In this regard, such a characteristic of the method of this industry, which includes methods of regulation that are opposite in their content, cannot be excluded. At the same time, it is important to focus attention on which subjects of legal relations this or that component of the method is dominant. In this regard, when determining the method of civil procedural law, it seems necessary to take into account the peculiarities of the impact of the norms of this industry, respectively, on the court and on other subjects of civil procedural legal relations.

A peculiarity of the procedural position of persons participating in a case who have a material and legal interest in the outcome of the case is that in most cases, in relation to such persons, on the one hand, a permissive method of regulation is used (you can perform procedural actions that are permitted by law), and on the other hand, the dispositive element of the method of legal regulation is manifested, consisting in the fact that these persons are given the opportunity to dispose of the procedural rights belonging to them with their own will and in their own interest (subject to the condition of conscientious use of these rights). V.V. Komarov believes that disposition as one of the sides of the method of civil procedural law is manifested precisely in the general legal status of these persons, and not in the specifics of the formation of the rights and obligations of these persons and the court V.V. Komarov. Method of legal regulation of civil procedural relations: Author's abstract. dis. ...cand. legal Sci. Kharkov, 1980. P. 13.. In the formation of procedural rights and obligations of the persons participating in the case and the court, there are practically no dispositive elements, since in civil proceedings the mutual rights and obligations of participants in legal relations are not determined by agreement of the parties.

The structure of the judicial system and the organization of the administration of justice should also be considered as a mandatory element of the civil procedural system. The organizational component is an important factor in the development of law. As an element of the legal system, it is interpreted by the doctrine of criminal law and indirectly by other branches of law. In civil proceedings it is of particular importance. Considering that the implementation of civil procedural legislation is carried out in the courts, the specifics of their organization have a great influence on both law enforcement and the improvement of specific legal norms. Therefore, the idea of ​​the national civil procedural system will be incomplete if the structure of the judiciary and the specifics of its organization are excluded from its composition.

Thus, the civil procedural system consists of four groups of elements: legal norms, procedural actions, scientific views and the organization of the judiciary.

The system of civil procedural law is determined by a set of civil procedural rules that regulate justice in civil cases and ensure the fulfillment of the tasks of civil proceedings.

As part of civil procedural law, one should distinguish between general provisions related in content to the entire process, and rules governing proceedings at individual stages of the process, including enforcement proceedings, as well as rules governing procedural actions with a foreign element. Based on this, the system of procedural law distinguishes two parts - general and special. The provisions of the general part are also important for the institutions of the special part.

The concept " civil procedural"can be viewed from 3 points of view:

1. as a branch of law;
2. as science;
3. as an academic discipline.

Civil procedural law as a branch of law

Civil procedural law - a branch of law that includes a set of rules governing social relations arising between participants in civil proceedings and all authorities (hereinafter referred to as the court) in the administration of justice in civil cases.

In other words, civil procedural law- this is a system regulating civil procedural actions and legal relations that develop between the court and other participants in the process in the administration of justice in civil cases.

Civil process

Civil process - this is the activity of the court (civil proceedings) and other bodies specially authorized by law for the protection of civil rights, carried out in a special procedural form.

Civil process and civil proceedings are correlated as general and private.

Often, due to the priority of judicial protection of civil rights over other forms of protection, civil proceedings are often understood as civil proceedings (which is not entirely true from a theoretical point of view), i.e. the procedure for consideration and resolution of civil cases by courts, and give the following definition:

• Civil process(civil proceedings) - the procedure for considering and resolving civil cases within the jurisdiction of the courts, regulated by the norms of civil procedural law.

However, in general, the process exists where the implementation of a material protective legal relationship occurs. In this regard, it is customary to distinguish the following types of process:

1. civil (civil law) and
2. criminal law.

Civilistic (or civil) type of process, in turn, includes the following legal proceedings:

• civil;
• arbitration;
• administrative.

The civil process is universal as a compulsory form of protection of subjective rights arising not only and not so much from civil, but from family, labor, social, housing, land, environmental and even public legal relations.

Civil procedural law is an independent branch of law, therefore it has a specific subject and method of legal regulation.

Object of legal regulation of civil procedural law:

• public relations in the field of legal proceedings in civil cases.

Subject of civil procedural law as a branch of law:

• civil process, i.e. the activities of the court and other participants, as well as the activities of the bodies executing court decisions (to a certain extent).

Note on the subject of civil procedure

It is necessary to distinguish between the subject of civil procedure and the subject of civil procedural law.

The subject of civil proceedings as court activities for the administration of justice, taking place in a certain procedural form, are specific civil cases.

Method of civil procedural law

• dispositive-imperative.

More details

Generally, the initiative for civil cases to arise belongs to the interested parties, not the court. The court does not initiate civil cases on its own initiative. Appeals against judicial acts and, as a rule, their execution also depend on the will of the interested subjects of procedural law. Most rules of civil procedural law are permissive, not prohibitive. Participants in the process can only occupy one procedural position inherent in them and perform only such procedural actions that are permitted and provided for by the rules of procedural law.

However, in civil proceedings the imperative method is also used - this is the method of authoritative instructions. It is characteristic primarily of power relations, relations between the court and other participants in the process. The court makes authoritative decisions that are subject to enforcement. Civil procedural law, therefore, actively uses both methods of legal regulation.

Civil procedural form

Procedural form - these are the basic rules for considering and resolving a case, enshrined in procedural law, a system of procedural rules. The procedural form is an integral, constitutive element of judicial activity. Its presence distinguishes the activities of courts from other forms of protection of rights.

Main features of the civil procedural form:

1. a system established by law of certain requirements for the procedure for resolving cases (submitting an application, paying state fees, presenting evidence, etc.);
2. a clearly defined circle of persons who have the right to take part in the consideration of a civil case (plaintiff, applicant, defendant, third parties, etc.);
3. vesting persons entitled to participate in the process with certain procedural rights and responsibilities;
4. making a decision by the court (in a certain procedural form) only after the case has gone through a number of stages in compliance with procedural requirements and process principles.

In order for legal proceedings to achieve the goals and objectives assigned to it, it is necessary to strictly observe the civil procedural form.

You can go to court only in the manner established by the legislation on civil proceedings. The court is deprived of the right to initiate a civil case on its own initiative and can initiate a case only based on a statement (statement of claim), in which the interested person sets out his demands and substantiates them.

Civil proceedings cover the procedural actions of the court, the parties, other participants in the process, their procedural rights and obligations. Relations arising in the course of the administration of justice can only be carried out in the manner and forms established by the norms of civil procedural legislation, i.e.:

1. in civil proceedings, only actions provided for by the norms of civil procedural legislation can be performed;
2. emerging social relations always take the form of procedural legal relations;
3. civil proceedings represent an inextricable connection (a certain system) of actions and legal relations.

Civil procedural law as a science

Science of civil procedural law , or civil procedure, is one of the fundamental areas of legal knowledge. Its significance is determined by the objective role of civil procedural law in regulating social relations in the administration of justice in civil cases.

The science of civil procedural law (civil procedure) studies the social relations that develop in the activities of courts in considering civil cases and performing the tasks assigned to the court as a judicial body. She examines procedural rules in inextricable connection with their application in practice and analyzes the causes of civil disputes and cases in the courts, generalizes judicial practice, and makes recommendations for improving the rules of procedural law.

Object sciences of civil procedural law are:

• civil procedural law as a branch of law;
• social relations that develop in the process of administration of justice in courts of general jurisdiction, taken in their development.

Subject of the science of civil procedural law:

• issues of theory and history of civil procedural law.

The goals of the science of civil procedural law:

1. development of reasonable proposals to improve legislation, prevent legal disputes, in connection with shortcomings or gaps in the current legislation identified in the process of studying theory and judicial practice;
2. formation of legal consciousness(including lawyers).

Civil procedural law does not regulate the activities of arbitration courts, notaries, arbitration courts, bodies executing judicial acts and acts of other bodies, but the science of civil procedure examines these legal phenomena.

Civil procedural law as an academic discipline

The study of the procedural aspects of the activities of state bodies that protect the law is the object of not only science, but also the educational discipline of civil procedure, since they, like the courts, are associated with the protection of the rights and legally protected interests of citizens and organizations.

Civil procedural law (civil procedure) is subject to study only on the basis of previously acquired legal knowledge in the field of theory, legal history, constitutional, administrative and civil law.

The process is a form of life of the law, and the norms of regulatory (substantive) law are of direct importance for the knowledge of many institutions of civil procedural law, especially such as jurisdiction, jurisdiction, parties, claim, evidence.

Purpose of study academic discipline of civil procedure is to develop in the future lawyer a legal worldview, a correct understanding of all basic procedural phenomena, i.e. about those legal concepts and categories that are used by civil procedural law and judicial practice, namely:

• • the essence of the civil procedural branch of law, the process as an activity of the court;
  • specifics of procedural relations;
  • the rights and obligations of the court and persons participating in the case;
  • stages of the process.

Civil process (legal proceedings)- this is the procedure for proceedings in civil cases regulated by the norms of civil procedural law, which is determined by a system of interconnected civil procedural rights and obligations, as well as civil procedural actions by which they are implemented by their subjects - the court, the judicial enforcement body and the participants in the process.

Tasks. The main task of civil proceedings is the protection of violated or disputed rights, freedoms and legally protected interests of citizens, organizations and their associations, as well as the protection of state and public interests. This task is specified in relation to each case and is implemented at all stages of the process, but mainly in the decision of a court of general jurisdiction. It is in the decision that violated and contested rights and freedoms are protected. If the claim is fully satisfied, the court decision protects the rights of the plaintiff that were violated or disputed by the defendant. If a claim is rejected, the defendant’s rights against the plaintiff’s unfounded demands. If the claim is partially satisfied by a court decision, the rights of the plaintiff are protected in one part, and the rights of the defendant in the other.

By helping to exercise rights and ensuring the fulfillment of duties, the court thereby contributes to the strengthening of the rule of law in the Russian Federation.

Kinds. The legislation on civil proceedings establishes a unified procedure for the consideration of civil cases, combined according to material characteristics into three types, such as:

1) claim proceedings (in cases that arise from civil, family, labor, cooperative legal relations);

2) proceedings in cases that arise from administrative-legal relations (on complaints from citizens against the actions and decisions of election commissions and bodies);

3) separate proceedings (in cases of recognizing a citizen as having limited legal capacity or incapacity; recognizing a citizen as missing or dead, etc.).

The stage of the process should be understood as

a set of a number of procedural actions united by a corresponding procedural goal.

Stages:

1) initiation of a civil case;

2) preparing a civil case for trial;

3) hearing the case on the merits in the court of first instance;

4) proceedings in the cassation court;

5) review by way of supervision of court decisions, rulings and decrees that have entered into legal force;

6) revision of decisions, determinations and regulations that have entered into legal force due to newly discovered circumstances;

7) enforcement proceedings are the last, final stage of the civil process, when the court decision in the case is enforced.

2. The concept of civil procedural law: subject, method and system

– this is a set and system of legal norms, the subject of regulation of which are social relations in the sphere of administration of justice in civil cases.

These relations determine the procedural order of proceedings in civil cases, established by the Civil Procedure Code of the Russian Federation (Civil Procedure Code of the Russian Federation) and other laws. This procedure consists of proceedings for the consideration and resolution of cases on disputes that arise from civil, family, labor and other legal relations and cases.

The subject of civil procedural law (CLP) is procedural order of proceedings in civil cases.

It is determined by the system of procedural actions that are performed by the court, the judicial enforcement body, and the participants in the process; content, form, conditions for performing procedural actions; a system of civil procedural rights and obligations of subjects of legal relations that determine the content of civil procedural actions; guarantees for the implementation of civil procedural rights and obligations.

Subject of GPP- this is a set of only those social relations that develop in the administration of justice in civil cases in courts of general jurisdiction.

Method of civil procedural law is imperative and dispositive in nature.

Features of the method:

1) initiation of a criminal case on the initiative of interested persons;

2) in the mandatory participation of a law enforcement agency (court), vested with authority, and the “court-participants” relationship is always built on authority, but the “defendant-plaintiff” relationship is always built on the principle of equality. This is the specificity of the subject composition;

3) the uniqueness of sanctions in civil procedural law, including unfavorable procedural consequences. If the deadline for filing a cassation appeal is missed, the court will not accept it; if the defendant does not appear in court, the case is considered without his participation, which clearly plays into the hands of the plaintiff;

4) the nature of legal facts. In civil procedural law, legal facts are procedural actions that are predetermined by law.

System of civil procedural law (Civil Procedure Code of the Russian Federation)– this is a set of norms and institutions of the branch of law determined by the subject of regulatory rights. It is determined by the structure of the Code of Civil Procedure of the Russian Federation and consists of two parts - general and special. The general part unites the norms and institutions of the Civil Procedure Code, which are important for the entire industry, all types of production and stages of civil proceedings (Sections I and II of the Code of Civil Procedure of the Russian Federation). The special part includes norms and institutions that regulate the procedure for considering and resolving cases at stages of legal proceedings (sections III–VI of the Code of Civil Procedure of the Russian Federation).

3. Sources of civil procedural law

Sources of civil procedural law can be divided into several groups:

1) The Constitution of the Russian Federation, which is the main source. The Constitution of the Russian Federation delegates the function of justice to the courts and determines the judicial system of the Russian Federation. The norms of the Constitution of the Russian Federation determine the basic principle of legal proceedings - equality of parties;

2) The Civil Procedure Code of the Russian Federation as the main procedural source. The purpose of the Code of Civil Procedure of the Russian Federation is to regulate in as much detail as possible the procedure for considering civil cases in courts;

3) laws on the judicial system: Federal constitutional laws “On the judicial system of the Russian Federation” from 1996, “On military courts of the Russian Federation” from 1999, Federal law “On justices of the peace in the Russian Federation” from 1998, Federal law “On people’s assessors of federal courts of general jurisdiction in the Russian Federation" from 2000;

4) federal laws that are fully or partially devoted to the procedure for prosecuting cases in courts or allow delimiting the competence of courts - the Law of the Russian Federation “On appealing in court actions and decisions that violate the rights and freedoms of citizens” of 1993, the Federal Law “On Enforcement Proceedings” "from 1997. Partially procedural: Law “On Bailiffs” from 1997. Allowing the delimitation of the competence of the courts: the Arbitration Procedure Code of the Russian Federation, the Federal Code of Law “On the Constitutional Court of the Russian Federation” from 1994. They are not sources of civil proceedings, but only help to distinguish between civil process and other industries;

5) federal laws containing rules of substantive law and partially separate procedural rules. These may be rules defining methods of protection (for example, Article 12 of the Civil Code of the Russian Federation). The rules of substantive law may address issues of jurisdiction or competence (for example, labor dispute commissions). The rules of substantive law may contain rules on evidence, their relevance or their admissibility. Article 162 of the Civil Code of the Russian Federation, if persons do not conclude an agreement in writing, then they are deprived of the right to refer to witness testimony;

6) international legal norms, international treaties;

7) Regulatory legal acts of the President of the Russian Federation, regulatory legal acts of the Government of the Russian Federation, regulatory legal acts of federal government bodies, regulatory legal acts of government bodies of constituent entities of the Russian Federation, etc.

Resolutions of the Plenum of the Supreme Court of the Russian Federation and the Supreme Court of the USSR, although they are not sources, play an important role.

4. Concept, meaning and classification of principles of civil procedural law

Principles of civil procedural law– legal provisions that reveal the essence and content of procedural institutions and norms.

General principles for all branches of law:

1) constitutional and sectoral;

2) intersectoral and sectoral;

3) shipbuilding (organizational) and procedural (functional).

In civil procedural law, the following principles are distinguished:

1) the principle of administering justice only by the court– form of implementation of the principle of separation of powers;

2) the principle of individual and collegial consideration of civil cases, meaning that cases in the court of first instance are considered collegially or individually, in the court of cassation - collegially consisting of three members of the court;

3) the principle of independence of judges and their subordination only to the law, meaning the resolution of civil cases based only on the law;

4) the principle of administering justice in civil cases on the basis of equality of citizens before the law and the court, consisting in the fact that citizens are equal before the law and the court, regardless of their origin, social and property status, race and nationality, gender, education, language, attitude to religion, type and nature of occupation, place of residence and other circumstances;

5) the principle of publicity of judicial proceedings, consisting in the fact that the proceedings in all courts are open;

6) the principle of the national language of legal proceedings, consisting in the fact that legal proceedings in civil cases are conducted in Russian or the language of a subject of the Russian Federation;

7) principle of legality. The court in its activities is guided by the norms of substantive and procedural law;

8) principle of objective truth, consisting in a comprehensive, complete and objective study and establishment of the actual circumstances of the case;

9) principle of dispositivity, meaning initiative in initiating, moving, changing and terminating civil cases at the will of interested parties;

10) principle of competition. Civil proceedings in the Russian Federation take place in the form of a dispute;

11) principle of procedural equality. The court, while maintaining independence, objectivity and impartiality, manages the process and provides assistance to the persons participating in the case;

12) the principle of orality, immediacy and continuity of judicial proceedings. This principle means that the meeting is conducted orally directly by the participants in the process (or their representatives) with breaks in the prescribed manner.

5. Civil procedural rules (concept, types, features, structure)

Civil procedure rules– these are generally binding rules of conduct established or sanctioned by the state that regulate relations between subjects of civil procedural legal relations.

Signs:

1) calculation for repeated action (implementation or application) of the rule of law;

2) extension to the personal circle of persons participating in civil proceedings;

3) focus on regulating not a single case or relationship, but civil procedural legal relations of a certain type;

4) equal bindingness of the rules of law for all those who are or may be within the scope of its action.

Civil procedural legal norms have representative and binding nature. This means that the rules, while giving one person the right to act in a certain way in a regulated relationship, at the same time impose an obligation on another person either to act in a certain way or to refrain from acting.

General obligatory norms is expressed in the fact that they are provided with the possibility of applying civil procedural measures against persons who have violated their instructions.

Legal norms are also distinguished by such quality as formal certainty. This means that each norm has a strictly defined official verbal expression, which is not subject to arbitrary change by anyone in the process of its implementation or application.

The structure of the norm is understood as its internal structure, the presence in it of components inextricably linked with each other and presupposing one another.

Hypothesis– this is an indication of the conditions (factual circumstances) under which this rule applies. It also points out the general characteristics of those persons who can act as subjects of the rights and obligations established by it.

Disposition- this is a statement of the very rule of behavior that must be followed in the situation provided for in the hypothesis. This is the core of the legal norm. It sets out the measure of possible and proper behavior (rights and obligations) of the parties.

Sanction- this is an indication of those government measures that can be applied to persons who violate the requirements set out in the disposition.

The structure of the legal norm and the form of its presentation in texts and articles of the civil procedure code. Civil procedural rules are intended to regulate the activities of state bodies, including procedures for considering issues related to the application of law. They regulate the procedure for considering civil disputes in court.

According to the volume and scope of action, legal norms can be divided into general, local, local, and exclusive.

6. Effect of civil procedural rules in time and space

Clarification of the limits of action of civil procedural rules is a test of the effect of legal rules in time, space and in relation to persons and institutions.

First of all, it is necessary to clarify the issue of the time of entry into force of legal norms. Laws, regulations and other acts, decrees and resolutions of a general normative nature, which indicate the period for their entry into force, come into force throughout the territory from the date specified in them.

If they indicate the event to which the beginning of their action is timed, they come into force with the onset of such an event. In the absence of such an indication, the mentioned acts come into force throughout the country simultaneously after 10 days after their publication in a newspaper with state status.

All other acts that are not of a general normative nature come into force from the moment of their adoption, unless the acts themselves indicate a different period for their entry into force.

Laws, decrees, government resolutions, officially announced by radio or transmitted by telegraph, come into force on a general basis, unless they indicate a different procedure for their implementation. When applying the norms of civil procedural law, one must proceed from the general rule: since the law has entered into force, it is known to everyone and ignorance of the law does not relieve one from responsibility. Knowledge of laws allows us to demand from everyone the same attitude towards compliance with legal norms. In this regard, norms are an essential precondition for a strong rule of law in a country. Otherwise, it would be necessary to specifically prove in each specific case the knowledge of the law by a citizen or official and rely on random and subjective factors in the application of the law.

In civil procedural law, the principle “the law does not have retroactive force” applies. that is, the effect of a legal norm does not extend to life facts and events that took place before the entry into force of the normative act in which this norm is expressed, unless this is stated in the normative act itself.

This principle brings certainty to the implementation of legal norms, and thereby to social relations.

It provides citizens with the opportunity to conform their behavior to pre-established rules and creates confidence that lawful actions performed within the framework of the current law will not be subsequently recognized as unlawful.

The application of any legitimate norm of civil procedural law is its implementation in legal relations that arise, change and cease in connection with the occurrence of certain facts with which the legal norm connects this.

7. The essence, main features and significance of the civil procedural form: concept, features, meaning and consequences of its violation

The form of application to the court by the interested party depends on the type of proceedings:

1) statement of claim – in claim proceedings;

2) application - in writ and special proceedings, as well as in proceedings on cases arising from public legal relations;

3) application - in cases of challenging decisions of arbitration courts and issuing writs of execution for their execution - application;

4) petition – in cases of recognition and enforcement of decisions of foreign courts and foreign arbitration awards. Only an appeal from an interested party (plaintiff, claimant, applicant) is not enough for a civil process to arise; this also requires counter-enforcement actions of the court represented by a single judge. Compliance by the applicant with the procedure established by law for applying to court for the protection of rights, freedoms and interests protected by law obliges the judge to issue a ruling on acceptance of the application, which procedurally formalizes the initiation of a civil case in the court of first instance.

As a general rule, in accordance with the principle of discretion, the initiative in initiating a civil case should belong to a person interested in protecting his rights, freedoms and interests. The law allows exceptions to this general rule only in cases where it is necessary to protect state or public interests, protect the rights, freedoms and legally protected interests of other persons who do not have sufficient opportunity to exercise the right to go to court.

Initiative in the emergence of the process in such cases, it may belong to the prosecutor, other state bodies, local governments, organizations or individual citizens who went to court on their own behalf in defense of the interests of the state, municipalities, an indefinite number of persons or specific individuals.

In case of violation of the civil procedural form, the following consequences may occur:

1) refusal to accept the statement of claim (application);

2) return of the statement of claim (statement);

3) leaving the statement of claim without progress.

The judge returns the statement of claim if:

1) the plaintiff did not comply with the pre-trial procedure for resolving the dispute;

2) the case is not within the jurisdiction of this court;

3) the claim was filed by an incapacitated person;

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

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

8. The place of civil procedural law in the system of Russian law. Process science

Civil procedural law occupies one of the main places in Russian law. The responsibility for administering justice in civil cases is assigned not only to courts of general jurisdiction, but also to arbitration courts. According to the rules of arbitration procedural legislation, they exercise judicial power, in particular, through civil proceedings. Civil procedural law closely interacts with the Civil Law of the Russian Federation, the Constitution of the Russian Federation and other laws.

Civil procedural law is under the exclusive jurisdiction of the Russian Federation. Consequently, the constituent entities of the Russian Federation do not have the right to adopt laws and other regulatory legal acts regulating the procedure for considering civil cases.

The fundamental source of civil procedural law is the Constitution of the Russian Federation, which enshrines the main goals of justice, its most important principles, as well as the fundamental rights and freedoms of man and citizen in this area.

The most important among ordinary federal laws in civil proceedings is the Civil Procedure Code, which enshrines most of the norms of civil procedural law, including all its basic provisions.

The civil procedural rules that determine the procedure for civil proceedings in federal courts are also valid when considering civil cases by a magistrate, but taking into account the specifics of his administration of justice, which are provided for by federal law.

It is difficult, and sometimes impossible, to provide in legislation for the full variety of situations that may arise in the procedure for considering and resolving a specific civil case. In this regard, in judicial practice quite often it is necessary to overcome gaps in the legal regulation of procedural activities and related relations between the subjects of legal proceedings using the analogy of law or law.

The main ultimate goals of civil proceedings as sciences in the system of Russian law are the protection of the rights, freedoms and legally protected interests of citizens, organizations, the state and society represented by the Russian Federation and its constituent entities, federal and regional government bodies, local governments.

This sequence of target orientation of the procedural activities of the court and other participants in civil proceedings corresponds to the provisions of the Constitution of the Russian Federation on the priority importance of the rights and freedoms of man and citizen, which determine the meaning, content and application of laws, as well as the activities of state and other bodies and are ensured by justice.

The concept of civil procedural law (subject, method, system, meaning).

Civil procedural law – an independent branch of law, with its own subject and method, but subject of civil procedural law is the totality of only those social relations that develop in the administration of justice in civil cases in courts of general jurisdiction.

Any branch of law is always defined as a set of norms aimed at regulating the relevant subject. The industry affiliation of a set of norms is determined by the possibility of identifying an independent subject and method of regulation, a separate regulatory framework. All these characteristics are fully met by civil procedural law.

A feature of procedural branches of law is the presence of a double subject of regulation.

The subject of civil procedural law is:

Civil procedural legal relations

Civil procedural activity

Each branch of law has its own regulation method, those. a set of means and methods by which civil procedural activities and legal relations are regulated.

This method is:

Permission

Civil procedural form

Method of civil procedural law- imperative-dispositive. Wherein imperativeness expressed in the authoritative instructions of the court. Each action (including administrative actions of the parties) during civil proceedings is carried out exclusively with the sanction and permission of the court.

Dispositive the nature of the method is manifested in the parties’ representation of a wide range of rights, allowing them to influence the development of the process of resolving civil cases.

The system of civil procedural law consists of two parts: general and special . a common part includes fundamental provisions: the composition of participants, the system for protecting their procedural rights, the subject competence of the court, deadlines, costs, judicial evidence and their means. The general part is constructed in strict accordance with the General Provisions of the Civil Procedure Code (Chapter 1-10). Special part regulates the movement of a case through the procedural stages of legal proceedings from initiation to completion of civil procedural activity.

Stand out: writ proceedings, claim proceedings, proceedings in cases arising from public legal relations, special proceedings, as well as proceedings for the review of judicial acts in the appellate, cassation and supervisory procedures.

The sections of the special part are: proceedings in cases involving foreign persons; proceedings in cases of challenging decisions of arbitration courts and issuing writs of execution for the forced execution of decisions of arbitration courts; proceedings related to the execution of court decisions and decisions of other bodies (Chapter 11-47 of the Code of Civil Procedure).

GPP- a set of legal norms regulating the procedure for initiating, considering and resolving civil cases by the court, reviewing court decisions, as well as the procedure for compulsory execution of court decisions (decisions, rulings), i.e. justice in civil cases.

GPP is a system of legal norms governing civil procedural actions and legal relations that develop between the court and other participants in the process in the administration of justice in civil cases.

Subject of regulation of GSP is a civil process - procedural actions and legal relations of the court with other subjects of the civil case under consideration without including the activities of other bodies - the subject of the CPP is limited to legal proceedings in civil cases in courts of general jurisdiction.

Thus, subject of GPP are social relations arising in the field of civil proceedings (process), i.e. civil procedural relations.

GPP method as a way to influence relations regulated by this industry - imperative-dispositive, in which power relations are combined with the freedom and equality of interested parties (they are determined by two circumstances: the emergence of a civil process, its development, the transition from one stage to another depends on the will of the interested parties; but - the obligatory and decisive subject of civil procedural legal relations is the court, accepting on behalf of government decision, subject to forced execution if necessary).

Combination of imperative and dispositive principles reflects, first of all, the specifics of the court as an obligatory participant in all civil procedural legal relations, on the one hand, and other subjects, on the other. Imperativeness of the method of legal regulation is determined by the fact that all civil procedural relations are relations of power and subordination due to the participation in them of the court - a state body authorized to administer justice and vested with authority. The court is obliged to strictly comply with the requirements of the law and demand the same from all participants in civil proceedings. Only the court as an authority has the right to apply coercive measures provided by procedural law.

Dispositivity reflects another aspect of the impact of the GPP: the free exercise of the granted rights and assigned responsibilities, but within the framework of the law; equality of rights and obligations in relation to the same type of subjects (the parties to the proceedings are equal, etc.); guarantee of rights. Taken together, dispositiveness and imperativeness characterize the method of civil procedural law.

2. Sources of civil procedural law. Code of Civil Procedure of the Russian Federation 2002: structure, content of sections.

The procedure for civil proceedings in federal courts of general jurisdiction is determined by the Code of the Russian Federation, the Federal Code of Law "On the Judicial System of the Russian Federation", the Civil Procedure Code and other Federal Laws. The rules of the Civil Procedure Code contained in other laws must comply with the provisions of the Code of Civil Procedure.

Civil proceedings before a magistrate determined by the Civil Procedure Code, the Federal Law “On Justices of the Peace in the Russian Federation” and other Federal Laws (Parts 1, 2, Article 1 of the Civil Procedure Code).

Sources of civil law as an external form of expression of law- these are normative acts of various levels containing the norms of the specified branch of law.

Currently, the sources of civil procedural law are characterized by the following:

· predominance of laws among the sources of GPP. The strengthening of the role of the court leads to the fact that its activities are regulated mainly at the level of laws, rather than by-laws;

· simultaneous operation of republican and all-Union civil procedural legislation on the territory of the Russian Federation. The development of republican legislation has practically already eliminated this dualism;

· expanding the range of legislative acts containing GLP norms.

Currently, courts of general jurisdiction of the Russian Federation act in accordance with the decisions of the Plenum of the Supreme Court of the Russian Federation.

Judicial sources should also include joint decisions of the Plenum of the Supreme Court of the Russian Federation and the Plenum of the Supreme Arbitration Court of the Russian Federation.

Decisions of the Constitutional Court of the Russian Federation . In accordance with the Federal Law on the Constitutional Court of the Russian Federation, its decisions are binding on all judicial bodies of the Russian Federation. The Constitutional Court considers requests related to the operation of civil law provisions.

Judicial practice in civil cases is both the result of the application of the rules of law in the administration of justice, and also a source of further development of civil procedural law.

The principle of combining oral and written language.

Claims, petitions, and written evidence are presented in writing, but are read out during the process. The proceedings in court are conducted orally, but a written record is kept. A court decision is made in writing and announced orally;

Subjects of legal relations.

1. Court– is a mandatory subject of every civil procedural legal relationship. As a public authority that administers justice, the court occupies the main and leading position in legal proceedings, directing the process. The power of the court is manifested simultaneously as the rights and duties with which it is endowed to perform the functions assigned to it.

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

Subjects of civil procedural legal relations are the courts of first and second instance, as well as courts reviewing civil cases in the order of supervision and based on newly discovered circumstances. The court, as a subject of procedural legal relations, has procedural rights and bears procedural responsibilities to 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 is the expected legal result of the consideration and resolution of a case for a given person, based on the law.

The persons participating in the case have different legal interests. 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, or subordination.

3. Participants in legal proceedings promoting justice, – witnesses, experts, translators, judicial representatives. A characteristic feature of the participants in civil procedural legal relations of this group is that they have no 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, subjects of all three groups are endowed with procedural rights and responsibilities.

The differences between the persons participating in the case and other subjects of civil procedural relations: 1) have their own substantive and procedural interests;

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.

Concept of evidence.

Proof– information received in the manner prescribed by law about the facts, on the basis of which the court establishes the presence or absence of circumstances justifying the demands and objections of the parties, as well as other circumstances relevant for the correct consideration and resolution of the case.

This information can be obtained from explanations of the parties and third parties, testimony of witnesses, written and material evidence, audio and video recordings, opinions of experts and specialists. Evidence obtained in violation of the law has no legal force.

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 that evidence that is relevant 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).

Data can be recognized as evidence only if the law is observed, i.e. these facts must be obtained, documented and investigated in compliance with the law. This guarantees the reliability 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) failure to comply with the procedural procedure for obtaining information about the facts at a court hearing;

3) bringing into the process evidence obtained illegally.

The evidence is divided into:

1)According to the method of formation, evidence is divided original and derivatives.

Initial are primary source evidence, derivatives– evidence that reproduces the content of another piece of evidence. Between a derivative proof and the fact it testifies to there is always at least one more proof;

2) According to the nature of the connection between the evidence and the fact to be provendirect and indirect– the division is based on whether the evidence makes it possible to draw only one definite conclusion about the sought fact - about its presence or absence - or several probable conclusions.

Direct is called evidence that, even taken separately, makes it possible to draw only one definite conclusion about the sought-after fact.

Circumstantial evidence taken separately, it provides the basis not for one definite, but for several conjectural conclusions, several versions regarding the sought-after 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 depending on the source of information about the facts of evidence – personal and material. The division is carried out depending on whether the sources of information are people or things.

TO 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 examining the evidence presented, without giving preference in advance to one or another evidence. Another thing is that during the trial, certain evidence may not be accepted by the court after its examination.

Audio and video recordings accepted by the court as evidence in civil and arbitration proceedings can be obtained in different ways. How does current legislation regulate the use of such materials? What are the differences between the approaches of the Arbitration Procedure Code and the Code of Civil Procedure of the Russian Federation to such evidence? What are the advantages and disadvantages of this means of proof? Does the right of citizens to privacy of telephone conversations extend to business telephone conversations?

The current APC and Code of Civil Procedure of the Russian Federation “legalized” the use of audio and video recordings as a means of establishing the circumstances of civil and arbitration cases. In fact, they were used in practice before (*1).

Audio and video recordings, with the help of which the circumstances of civil and arbitration cases are established, can be created in all sorts of, sometimes unusual and even exceptional circumstances, by a variety of people. Sometimes they are carried out by professional journalists and videographers; in some cases - by rescue service employees, medical workers and other persons seeking to record their actions as accurately as possible using video recordings; There are also works by amateurs - recordings on a household tape recorder, an amateur video camera or a phone video camera.

The name of the person who made such audio or video recording, as well as the circumstances under which it was created, must be recorded in the petition of interested parties for the inclusion and examination of relevant materials at the court hearing, and also taken into account when assessing them.

The current Code of Civil Procedure of the Russian Federation provides for regulation, although not very detailed, of audio and video recordings as evidence in civil proceedings. The central place among the norms regulating the use of audio and video recordings in civil proceedings is occupied by Art. 77 and 185 Code of Civil Procedure of the Russian Federation. In particular, on the basis of Part 3 of Art. 185 of the Code of Civil Procedure of the Russian Federation, the court may engage a specialist to clarify information contained in an audio or video recording. If necessary, the court may order an examination.

In part 1 of Art. 188 of the Code of Civil Procedure of the Russian Federation, entitled “Consultation of a specialist”, states that, in necessary cases, when playing an audio or video recording, the court is allowed to “involve specialists to receive consultations, explanations and provide direct technical assistance (photography, drawing up plans and diagrams, selecting samples for examination, property valuation)". Noteworthy is the not very successful version of the above rule: the playback of an audio or video recording in it is essentially in no way linked to a consultation with a specialist. In the cited norm, the list of types of “direct technical assistance” provided by a specialist is for some reason closed. In this regard, it is not entirely clear how a specialist will be useful to the court in this case. Probably, the legislator meant that in the situation regulated by Part 1 of Art. 188 of the Code of Civil Procedure of the Russian Federation, a specialist can help the court reproduce an audio or video recording. To make the legislator’s idea more understandable, the exhaustive list of types of direct technical assistance provided by a specialist to the court should be made open by adding “etc.” at the end. Then the specialist’s assistance to the court in playing audio or video recordings will be fully within the framework of the rule formulated in Part 1 of Art. 188 Code of Civil Procedure of the Russian Federation.

Similar in content to the above provisions of the Code of Civil Procedure of the Russian Federation, although in general the norms of the Code of Civil Procedure of the Russian Federation are much more meager. However, there are certain differences between them. Let us note the most significant ones. In part 2 art. 64 of the Arbitration Procedure Code of the Russian Federation, among the means of proof permitted by this code are written and material evidence, explanations of persons participating in the case, expert opinions, testimony of witnesses, audio and video recordings, other documents and materials.

The last of the listed sources of information is devoted to Art. 89 of the Arbitration Procedure Code of the Russian Federation, which is called “Other documents and materials”. The provisions of Part 1 of this article are essential. It says: “Other documents and materials are admitted as evidence if they contain information about circumstances that are important for the correct consideration of the case.” In other words, the Arbitration Procedure Code of the Russian Federation does not impose any formal requirements on the form of these documents and materials, but is limited to indicating the existence of a connection between the information contained in them and the circumstances that are important for the correct consideration of the case, i.e., with the subject of proof.

The provisions formulated in Part 2 of Art. 89 of the Arbitration Procedure Code of the Russian Federation, can confuse both theorist and practitioner: “Other documents and materials may contain information recorded both in writing and in another form. These may include materials from photography and filming, audio and video recordings and other media received, requested or presented in the manner established by this Code."

In part 1 of Art. 55 of the Code of Civil Procedure of the Russian Federation deals with audio and video recordings, on the one hand, and other documents and materials, on the other hand, as different means of proof. In part 2 art. 89 of the Arbitration Procedure Code of the Russian Federation, on the contrary, audio and video recordings are classified as other documents and materials along with photographic and film materials and other information media. Meanwhile, photographic and film materials are rather derivative material evidence.

How to resolve this contradiction? We believe that the formulation of the question in Part 1 of Art. 55 Code of Civil Procedure of the Russian Federation and Part 2 of Art. 64 of the Arbitration Procedure Code of the Russian Federation should be considered more accurate. Audio and video recordings are currently completely independent means of evidence.

In Article 185 of the Code of Civil Procedure of the Russian Federation and Part 2 of Art. 162 of the Arbitration Procedure Code of the Russian Federation very briefly formulates the procedural procedure for their study. Audio and video recordings are certain phenomena of the material world that are recorded on certain media. However, unlike most physical evidence, this type of information cannot be perceived directly by a judge or other person. It can be “removed” from an audio, video cassette or other medium exclusively with the help of devices specially designed for this purpose - a tape recorder, video recorder, etc. Based on the scientific and technical features of these sources of information, the legislator has established a special procedural procedure for their requisition and storage and research (Articles 77-78, 185 Code of Civil Procedure of the Russian Federation, Part 2 of Article 162 of the Code of Arbitration Procedure of the Russian Federation).

As for the actual “other documents and materials,” the Arbitration Procedure Code of the Russian Federation does not contain either a definition, a list, or a procedural procedure for studying these sources.

Based on Part 2 of Art. 162 of the Arbitration Procedure Code of the Russian Federation, reproduction of audio and video recordings is carried out by the arbitration court in the courtroom or in another room specially equipped for this purpose. The fact of playback of audio and video recordings is reflected in the minutes of the court session.

According to Part 4 of Art. 162 of the Arbitration Procedure Code of the Russian Federation, persons participating in the case have the right to give explanations to the arbitration court regarding the audio and video recordings included and examined at the court hearing about the evidence presented to them, as well as ask questions to the persons participating in the case, experts and witnesses.

Audio and video recordings are a very specific means of evidence. Like any other means of evidence, they have their advantages and disadvantages. The main advantage of audio and especially video recordings is their high degree of persuasiveness. Conversations and other components of the so-called “audio sequence” (screams, exclamations, music, other accompanying sounds and noises) are captured through audio recordings. As for video recording, with its help it is possible to accurately record and save a significant part of the information about the action that took place. By watching a video recording, especially if it was made at a high technical level, you can become an eyewitness to the events captured on it.

However, audio or video recording is carried out by a specific person (or people) using a specific technical device or devices. Therefore, the presence or absence of appropriate professional skills of the person who made the audio or video recording, as well as the quality of the technical means with which a particular recording was made, will inevitably affect its quality and the reliability of the information received. There is hardly any need to prove that the technical capabilities of household and professional video cameras and sound recording devices are incomparable. The quality of audio recording, whether performed alone or in conjunction with video recording, depends, among other things, on the acoustics of the room or other location where the recording was made.

It is also necessary to take into account that in the process of audio or video recording, accidental or deliberate distortion of the events displayed, up to and including their complete falsification, cannot be ruled out. The latter is especially likely when this type of recording is made by a professional who has the skills to use the widest technical capabilities of modern technology. Thus, it allows you to change sound and video, combine music or other sounds and human speech, imitate voices, apply various noises, include special effects, animation, computer graphics, etc.

Currently, audio and video recordings are often used in judicial practice to establish the circumstances of civil and arbitration cases. Due to the fact that the regulations contained in the Civil Procedure Code and the Arbitration Procedure Code of the Russian Federation are not detailed enough, when working with such evidence, courts are guided by the established procedural custom (*2), according to which audio and video recordings are examined in a court hearing in a certain order. In particular, a “transcript” of the text of a radio or television broadcast is usually included in the case materials. This is absolutely necessary, since the quality of audio and video recordings is sometimes such that when played back once using appropriate technical means, it is not always possible to make out individual words or phrases, examine fragments of the video sequence, or correctly understand the content of the recorded information. Typically, such a document is compiled as a result of repeated listening or viewing of audio or video recordings. The correspondence of such a “transcript” to the original is certified by the person or persons who compiled it. Such an obligation should be enshrined in Art. 77 Code of Civil Procedure of the Russian Federation, as well as in Part 2 of Art. 162 and other norms of the Arbitration Procedure Code of the Russian Federation.

In the case of viewing (listening) to a recording during a civil case, the number of the video (audio) tape, as well as the inscriptions on it, if any, are recorded in the minutes of the court session. After viewing (listening to) the video (audio) recording, the court provides the opportunity for the persons participating in the case and their representatives to give the necessary additional explanations. Persons participating in the case, with the permission of the court, ask each other questions and also answer questions from the court.

Failure to examine this type of evidence at a court hearing is one of the grounds for overturning a court decision.

54. Providing evidence. (Writs of Court)

Providing evidence Article 64.

Persons participating in the case who have reason to fear that presenting the evidence necessary for them will subsequently prove impossible or difficult may ask the court to secure this evidence.

Application for securing evidence Article 65. (bases)

An application for securing evidence is submitted to the court in which the case is being heard or in the area of ​​activity of which procedural actions to secure evidence must be carried out. The application must indicate the content of the case under consideration; information about the parties and their place of residence or location; evidence to be provided; circumstances to confirm which this evidence is necessary; the reasons that prompted the applicant to request the provision of evidence.

A private complaint may be filed against the judge’s decision to refuse to provide evidence.

Procedure for securing evidence Article 66.

The provision of evidence is carried out by the judge according to the rules established by this Code.

The protocols and all materials collected in order to provide evidence are transferred to the court considering the case, with notification of this to the persons participating in the case.

If the provision of evidence did not take place in the court in which the case is being heard, the rules of Articles 62 and 63 of this Code apply.

Preparing a civil case for trial: goals, objectives.

Accurate and strict compliance with the requirements of the law regarding the 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 judicial process, including a set of procedural actions carried out to ensure the correct and timely consideration and resolution of the case.

Target the stage of preparing cases for trial - ensuring its correct and timely consideration and resolution. Preparing cases for trial, regardless of the volume and complexity of the procedural actions performed, is a mandatory 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 the competent, complete and fair consideration of the case and the making of a decision.

Preparation of the case as a stage of the process begins from the moment the judge makes the relevant ruling and continues until the ruling is made to assign the case to trial at the court hearing. This stage is carried out with the participation of the parties, other persons, and their representatives, and the entire process is led by a single judge.

Preparation of the case for trial can only take place after the initiation of a civil case, i.e. after the acceptance of the application.

The objectives of preparing a case for trial are::

2) determination of the law and legal relations of the parties that should be followed when resolving the case;

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 correct and competent consideration of the case;

3) acceleration of the dispute resolution process;

4) facilitating the subsequent consideration of the case. At this stage of the trial, circumstances are clarified that, during future consideration, may be necessary to make a decision on the dispute.

Clarification of factual circumstances, important 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 so that the court correctly applies the rules of substantive law and determines the rights and responsibilities 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 is preliminary clarification.

Preparing a case for trial is an independent mandatory stage of civil proceedings, during which the judge, with the participation of the parties, persons involved in the case and their representatives, creates the conditions for the timely and effective resolution of each specific case on the merits. After accepting the application, the judge issues a ruling on preparing the case for trial (Article 147 of the Code of Civil Procedure of the Russian Federation).

The tasks of the stage of preparing the case for trial are determined by Art. 148 Code of Civil Procedure of the Russian Federation:

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

2) determining the law that should be followed when resolving the case, and establishing the legal relations of the parties;

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

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

5) reconciliation of the parties.

When preparing a case for trial, the judge takes actions specified in Art. 150 Code of Civil Procedure of the Russian Federation, which constitute the content of this stage.

However, it is not only the court that takes certain actions to prepare the case for trial. In accordance with Art. 149 of the Code of Civil Procedure of the Russian Federation, a number of preparatory actions are also carried out by the parties.

When preparing a case for trial, the court may schedule a preliminary hearing, the purpose of which is to:

procedural consolidation of administrative actions of the parties performed in preparing the case for trial, etc. .

Classification of definitions.

1. By subject:

1) sole judges – rendered by one judge;

2) collegial - made during a collegial review.

2. According to the order of resolution 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) persons participating in the case, the subject of the dispute or the stated claim;

d) the issue on which the ruling is being made;

e) the reasons why the court came to its conclusions and a reference to the laws that guided the court;

f) court order;

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

2) determinations entered into the minutes of the court session - made when resolving simple issues. The ruling can be made by the court after discussion on the spot without going to the deliberation room. In this case, the minutes of the court session indicate the issue on which the ruling is being made, the reasons for which the court came to its conclusions, and a reference to the law is given.

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 determinations may be the expression of the will of the parties (waiver of the claim, settlement agreement). Final decisions should also include other rulings that end the proceedings in the court of first instance (for example, a ruling to terminate the proceedings due to the lack of jurisdiction of the case in a court of general jurisdiction). If cases of violation of the law are identified, 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 the measures taken, the guilty officials may be subject to a fine of up to 10 times the minimum wage established by federal law. The imposition of a fine does not relieve the relevant officials from the obligation to report measures taken according to a private court ruling.

If, when considering a case, the court discovers 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.

Judgment. Requirements for a court decision.

During civil proceedings, various procedural decisions are made.

Judgment- a decision of the court of first instance, which resolves the case on its merits. The court's decision is made in the deliberation room.

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

IN introductory part the date and place of the court decision, the name of the court that made the decision, the composition of the court, the secretary of the court session are indicated

Method of civil procedural law

M. A. Alieskerov

According to one of the points of view existing in science, the division of the legal system into branches is based on the difference in the content and subject of legal regulation1. At the same time, criticizing the point of view about the decisive role of the subject of regulation in the sectoral differentiation of the legal system, S. S. Alekseev notes that branches of law are characterized by the legal originality of regulation from the point of view of their very nature and that in nothing other than legal features, in other words, in special regulatory regimes, this legal specificity of individual structural divisions of law cannot be expressed2.

Speaking about the factors influencing the content of procedural branches of law, we can note the predominance of the method over the subject, largely due to the fact that in this case the subject of regulation itself arises as a result of the adoption of appropriate procedural norms, since, unlike material relations, procedural relations can exist only in legal form. However, despite this, one cannot deny the influence of the subject on the content of civil procedural law, on its method and principles. It will determine

Alieskerov Mizamir Akhmedbekovich -

judge of the Kaluga Regional Court, associate professor of the branch of the Russian State University for the Humanities (Kaluga), candidate of legal sciences.

1 See, for example: Problems of the general theory of law and state: Textbook for universities / Under general. ed. V. S. Nersesyants. M., 2001. P. 331.

2 See: Alekseev S.S. Law: ABC - theory - philosophy: Experience of integrated use

following. M., 1999. P. 250.

caught by the general patterns of mutual influence of form and content, goal and means of achieving it. The objective needs of society for the existence of a civil process of a certain type, which limit the possibilities of choosing options for legal regulation, also have a significant impact here. It can be said that the establishment of a civilized procedure for the consideration and resolution of disputes requires appropriate methods of legal regulation and norms of procedural law.

The following are reasonably identified in the literature as the main elements of the method of legal regulation, including the method of civil procedural law: 1) the nature of the general legal position of the subjects of legal relations; 2) the nature of the grounds for the emergence, change or termination of legal relations (that is, legal facts); 3) the nature of the ways of forming the rights and obligations of subjects; 4) character< тер юридических мер воздействия (то есть санкций), способов, оснований и процедуры применения санкций3. Обратимся к их детальному рассмотрению.

1. The nature of the general legal position of the subjects of legal relations.

One of the most important characteristics of the legal status of subjects of civil proceedings is that the court has authority over other participants in civil proceedings.

3 See: Alekseev S.S. Problems of the theory of law. T. 1. Sverdlovsk, 1972. P. 134-135; Sherstyuk V. M. The system of Soviet civil procedural law (Theory issues). M., 1989. P. 86.

Danish procedural legal relations. However, the differentiated approach of the legislator to determining the fundamentals of the legal status of subjects of civil procedural legal relations is manifested not only in this.

In connection with the general characteristics of the method of legal regulation of civil procedural law in the educational literature, the opinion has been expressed that in this branch of law the dispositive-permissive method of regulation is used4. According to another point of view, civil procedural law is characterized by a imperative-dispositive method5. E.M. Muradyan writes that the combination of such independent methods as imperativeness and dispositivity is devoid of organicity. In her opinion, permission (legal permission) is characteristic of the sphere of administrative, but not civil procedural law, and in the civil process there is dispositiveness, which as a method cannot coexist with the permissive regulation procedure6.

In any branch of law there are both imperative and dispositive elements of legal regulation. At the same time, the general characteristics of the method of the legal industry can be based on the most typical, dominant, priority-used means and methods of influencing legal relations. Therefore, the judgment about the imperative-dispositive nature of the industry method

4 See: Civil procedure: Textbook / Ed. M.K. Treushnikova. M., 2003. P. 30.

5 See, for example: Civil procedural law: Textbook / S. A. Alyokhina, V. V. Blazheev, etc. / Ed. M. S. Shaka-ryan. M., 2004. P. 11; Osokina G.L. Civil process. A common part. M., 2004. P. 24.

6 See: Muradyan E.M. About textbooks on civil procedure // State and law. 2000. No. 4. P. 119.

law, at first glance, does not reveal the specifics of the method of regulation, since, including opposing methods of legal regulation, it does not ultimately allow us to identify which method is dominant. But a similar conclusion would be fair in relation to branches of law, where generally similar means and methods of legal regulation are applied to all subjects of legal relations (for example, civil law, characterized by the legal equality of subjects of legal relations). However, one of the features of civil procedural legal relations is that here different methods of legal regulation are subject to application to each of the parties who are in an unequal legal position. In this regard, such a characteristic of the method of this industry, which includes methods of regulation that are opposite in their content, cannot be excluded. At the same time, it is important to focus attention on which subjects of legal relations this or that component of the method is dominant. In this regard, when determining the method of civil procedural law, it seems necessary to take into account the peculiarities of the impact of the norms of this industry, respectively, on the court and on other subjects of civil procedural legal relations.

A peculiarity of the procedural position of persons participating in a case who have a material and legal interest in the outcome of the case is that in most cases, in relation to such persons, on the one hand, a permissive method of regulation is used (you can perform procedural actions that are permitted by law), and, on the other hand, the dispositive element of the method of legal regulation is manifested, consisting in the fact that

the persons involved are given the opportunity to dispose of their procedural rights at their own will and in their own interest (subject to the conscientious use of these rights). V.V. Komarov believes that discretion as one of the sides of the method of civil procedural law is manifested precisely in the general legal status of these persons, and not in the specifics of the formation of the rights and obligations of these persons and the court7. In the formation of procedural rights and obligations of the persons involved in the case and the court, there are practically no dispositive elements, since in civil proceedings the mutual rights and obligations of the participants in legal relations are not determined by agreement of the parties.

In the literature on the issue of the legal personality of the court, attention is drawn to the fact that it is determined not by legal capacity, but by the competence of the court, the peculiarity of which is the lack of personal interest and legal freedom in its bearer (it is legally binding)8. The fact that the procedural rights of the court are at the same time its duties was noted in the Russian procedural literature of the late 19th and early 20th centuries.9 The court is obliged not only to carry out the imperative provisions of the law expressed in direct form, but also to fully use the powers granted to it to implement functions assigned to him, when required by the rights and legitimate interests of the participants in the process, as well as other persons. Taking into account the above, there is reason to talk about

7 See: Komarov V.V. Method of legal regulation of civil procedural relations: Author's abstract. diss. ...cand. legal Sci. Kharkov, 1980. P. 13.

8 See: Komarov V.V. Decree. op. pp. 10-11.

9 See, for example: Vaskovsky E.V. Course in civil procedure. T. 1. M., 1913. P. 625.

that a mandatory method of regulation is used in relation to the court.

So, part 1 of Art. 57 of the Code of Civil Procedure of the Russian Federation provides that the court has the right to invite the parties and other persons participating in the case to present additional evidence. However, the need to exercise this power should be determined not by the free discretion of the court, but by the circumstances of the case and the specific situation that arose in the process of proof in the case. It would be correct to indicate in the law that, if necessary, the court invites the parties and other persons involved in the case to present additional evidence. Such an approach to formulating the requirements of the law would more accurately reflect the actual meaning of this and similar norms of the Code of Civil Procedure of the Russian Federation. The use of the wording “the court has the right” and “the court can” is acceptable in norms similar to Art. 199 of the Code of Civil Procedure of the Russian Federation, which provides that the preparation of a reasoned court decision may be postponed for a period of no more than five days from the date of completion of the trial of the case.

Similar judgments can be made in relation to the prosecutor participating in the case, state authorities and local governments acting in defense of other people's interests.

The legal status of persons contributing to the administration of justice is also characterized by the predominant use of mandatory means of regulation against them. Law, laying on; their certain procedural duties (appearing in response to a subpoena, giving testimony, giving an expert opinion, etc.), as a general rule, do not provide for any procedural freedom. Some exceptions to this rule (for example, the right to refuse to give

testimony against close relatives), as well as the presence of a number of rights among these persons (for example, the right to receive remuneration for loss of time or for expert work) do not affect the general characteristics of the procedural position of these persons.

Thus, this element of the method of civil procedural law is characterized by: the subordination of one subject of legal relations to another; the dominance of imperative means of regulation in relation to: courts; persons participating in the case who do not have their own material and legal interest in the outcome of the case, as well as persons contributing to the administration of justice; the dominance of dispositive and permissive means of regulation in relation to persons participating in the case who have their own material and legal interest in the outcome of the case.

2. The nature of the grounds for the emergence, change or termination of legal relations.

As in other branches of law, the basis for the emergence, change or termination of legal relations regulated by civil procedural law are legal facts. As V.V. Komarov notes, when considering the issue of the method of civil procedural law, it is necessary to single out from the totality of procedural legal facts those that constitute the specific legal basis of regulation. To such legal facts he includes facts that influence the entire process, all procedural legal relations, in particular, the procedural actions of the plaintiff or applicant, as a result of which civil proceedings arise, and the procedural actions of the court to exercise its competence (issuing judicial decisions -

lazy)10. This approach really allows us to identify the essential features of this component of the method of civil procedural law. When characterizing the method of civil procedural law, it seems necessary to turn to the features of the system of procedural legal facts as a whole, as well as to the patterns of their connection and mutual influence.

One of the features of the civil process as a phenomenon in constant motion is that the actions of the subjects of the process, carried out in accordance with their rights and obligations, in turn, give rise to the emergence of new powers and obligations and can lead to the emergence within the framework of a given civil process. cases of new legal relations11. In the scientific literature, the dominant point of view is that each of the participants in civil proceedings is bound by procedural legal relations with the court and is not in procedural legal relations with other participants in the process. At the same time, actions performed by subjects of one legal relationship indirectly give rise to legal consequences for other participants in the process. For example, failure to use; The cause of the claim and its acceptance by the court entail the termination of proceedings in the case, and, as a consequence, the termination of the procedural legal relations of the court with all participants" in the process; the petition of the plaintiff to obtain evidence from the defendant and its satisfaction by the court entails the emergence of an obligation on the defendant to provide this evidence. These properties legal facts, the legal consequences of which, as a rule, go beyond “their own”

10 See: Komarov V.V. Decree. op. pp. 11-12.

11 See: Shcheglov V.N. Civil procedural legal relationship. M., 1966. P. 30-31.

legal relations are one of the features of this element of the method of civil procedural law.

3. The nature of the ways of forming the rights and obligations of subjects.

The method of forming procedural rights and obligations of subjects of civil procedural legal relations is imperative. The rules of conduct, and, accordingly, the mutual rights and obligations of the subjects of legal relations are determined by law and cannot be changed by agreement of the parties; there is practically no discretionary regulation here. An exception is the provisions of the Code of Civil Procedure of the Russian Federation on contractual jurisdiction of cases. Strictly speaking, Art. 28 of the Code of Civil Procedure of the Russian Federation, establishing the general rule of territorial jurisdiction of cases, which, in accordance with Art. 32 of the Code of Civil Procedure of the Russian Federation can be amended by agreement between the plaintiff and the defendant. Attention should also be paid to the fact that in this case the general rule of jurisdiction changes not by agreement between the participants in the procedural legal relationship, that is, between the court, on the one hand, and the plaintiff or defendant, on the other hand, but by agreement between the plaintiff and the defendant, not in any procedural relationship with each other.

Agreeing with A. A. Gadzhieva’s statement about dispositive norms as a means of expressing and developing dispositivity in law12, we note that dispositive norms are only one of the means of expressing dispositivity in law. Another means is the dispositiveness discussed above (in paragraph 1) as an element of the general legal position of materially interested persons,

12 See: Gadzhieva A. A. Dispositive norms in criminal law // State and law. 2003. No. 11. P. 97.

participating in the case, which consists in the right of these persons to dispose at their own discretion of the procedural rights belonging to them. This means of expressing discretion in law, inherent in civil proceedings, should be distinguished from the dispositive (decentralized) procedure for determining the rules of behavior of subjects of legal relations, which is not characteristic of civil proceedings, unlike, for example, civil law.

4. The nature of legal measures (sanctions), methods, grounds and procedures for applying sanctions.

The exercise of procedural rights and the fulfillment of procedural duties is ensured in civil proceedings by a system of procedural means that have significant features that cannot but be taken into account when characterizing the method of this branch of law. Such means include, in particular, procedural sanctions provided for by law, some of which are measures of liability (for example, rules on fines), as well as some means of procedural protection that are not procedural sanctions.

Speaking about procedural protection measures that are not procedural sanctions, it is necessary to note the following. The law does not provide for any measures of procedural responsibility of the court in civil procedural legal relations; there are no subjects in the system of civil procedural legal relations; you, authorized to bring the court or judge to procedural responsibility. The personal liability of judges allowed by law, as well as in some cases the possible civil liability of the state for harm caused to a person in the administration of justice, are found

outside the framework of procedural relations. It appears that the reversal of a court decision by a higher court is neither a measure of the procedural responsibility of the court nor a procedural sanction. Persons participating in the case may be brought to civil procedural liability; persons promoting justice; as well as citizens present in the courtroom and at the same time violating the established order13. As V.V. Butnev believes, a miscarriage of justice cannot be considered as a procedural violation, since the rules of civil procedural law do not provide for measures of procedural liability for it, and in this case, restorative procedural sanctions and measures of procedural protection are applied14. In general, sharing the above point of view that the law does not provide for measures of procedural liability for a miscarriage of justice, we note that certain objections are raised by the judgment about the application of legal-restorative procedural sanctions in these cases. The corresponding measures can only be called measures of procedural protection.

13 See: Zaitsev I.M. Civil procedural responsibility // State and law. 1999. No. 7. P. 93.

14 See: Butnev V.V. The essence and procedure for implementing civil procedural

responsibility. Yaroslavl, 1989. P. 24.

Sanctions can only be applied if there are procedural legal relations between the relevant entities. Procedural legal relations between courts of various instances do not arise when considering a civil case. Courts of various instances, replacing each other, represent the same side in civil procedural legal relations. The reversal of a decision by a higher court is not a sanction against the court that made an erroneous decision, but the fulfillment by a higher authority of its duties that are part of the content of the procedural legal relations between this court and the persons participating in the case15. The absence of procedural liability measures and other procedural sanctions that can be applied to the court must be compensated in procedural legal relations by effective means of protection. These means of protection are supplemented outside the framework of a specific case, that is, outside the framework of procedural legal relations, with organizational and other non-procedural measures aimed at creating conditions for the normal functioning of the judicial system and ensuring the right to judicial protection. va

15 For more information about this, see: Alieskerov M.A. 0 Cassation proceedings in civil cases: issues of theory and practice. M., 2005. pp. 54-56. ^