Litigation in civil cases. The concept and types of civil process. in a civil case against a court decision

Among the courts of general jurisdiction, considering civil cases at first instance, a special place is occupied by justices of the peace.

The introduction of magistrates was provided for by the Concept of Judicial Reform, approved on October 24, 1991.

Supreme Soviet of the RSFSR. At the same time, it was assumed that justice of the peace would bring the court closer to the population, facilitate citizens' access to justice, speed up the passage of cases, including civil ones, until their final judicial resolution, and also significantly relieve federal courts.

Legislative consolidation of the institution of magistrates as one of the links in the judicial system was carried out by the Federal Constitutional Law "On the Judicial System of the Russian Federation" (Article 4). Later, on November 11, 1998, the State Duma adopted the Federal Law "On Justices of the Peace in the Russian Federation". This Law defines the competence of the justice of the peace. In addition to criminal cases of crimes for which a maximum sentence of not more than three years' imprisonment may be imposed, justices of the peace at first instance are called upon to consider cases on issuing a court order, as well as other civil cases arising from family, labor and civil legal relations. The Code of the Russian Federation on Administrative Offenses includes some cases of administrative offenses for the administration of a justice of the peace.

The generic jurisdiction of civil cases of justices of the peace is defined in Art. 23 Code of Civil Procedure of the Russian Federation.

The procedure for consideration and resolution of civil cases referred to the competence of a justice of the peace is subject to the general rules of civil proceedings. However, the place occupied by justice of the peace in the system of courts of general jurisdiction, the tasks that it is designed to solve in the administration of justice in civil cases, the features of the organization of judicial activities, have influenced the judicial procedures for considering and resolving specific cases by justices of the peace.

Prior to the inclusion of world justice in the judicial system, the issue of delimiting the competence of district courts from courts of a different level to consider and resolve civil cases at first instance was resolved quite simply. There was a rule that all civil cases at first instance were considered by district courts, with the exception of those that were specifically referred by law to the introduction of higher courts.

The justices of the peace have been transferred for consideration and resolution of some civil cases that were previously considered by the district courts.

Jurisdiction between district courts and magistrates is distributed based on the category of the case, the nature of the dispute, its subject matter, the amount of property claims, the subject composition of the disputed substantive legal relationship. At the same time, the legislator does not follow the path of transferring "less complex and less significant" cases to justices of the peace.

There are four main blocks of lawsuits that fall under the jurisdiction of this link in the judicial system (Article 23 of the Code of Civil Procedure of the Russian Federation):

cases arising from family legal relations;

labor affairs;

cases of recovery of property;

property cases.

The law (Article 23 of the Code of Civil Procedure of the Russian Federation) contains a number of exceptions to the jurisdiction of lawsuits by justices of the peace. Such exceptions include: in family legal relations, disputes about contesting paternity (maternity), establishing paternity, depriving parental rights, or adopting a child; on labor relations disputes about reinstatement at work; in civil legal relations, property disputes with the value of the claim in excess of 500 minimum wages established by federal law on the day of filing the application.

These disputes are under the jurisdiction of the District Court.

Turning to the jurisdiction of the justice of the peace cases arising from family legal relations, it should be noted that, first of all, we are talking about disputes, the resolution of which is based on the application of family law. They can also be proprietary. For example, cases on the division of property belonging to the joint property of spouses, regardless of the value of the claim, on the recovery of alimony, on the removal of debt on alimony, on changing the terms of an agreement, on alimony or on termination of its validity, etc. At the same time, family property disputes do not include requirements for the allocation of a share from common shared property acquired by persons, although living together, but not married.

In family disputes under the jurisdiction of the justice of the peace, divorce cases are highlighted. At the same time, the law emphasizes that cases of divorce cannot be considered by justices of the peace if there is a dispute between the spouses about children (Article 23 of the Code of Civil Procedure of the Russian Federation).

Determining the existence of a dispute about children in the divorce proceedings, one should proceed from the provisions of Art. 24 of the Family Code of the Russian Federation, according to which, upon dissolution of marriage in court, spouses can submit to the court an agreement on which of them minor children will live with. If such an agreement is presented, then there is no doubt that the case is subject to a magistrate. It is more difficult when such an agreement is not presented by the spouses. Does this mean that there is a dispute about the place of residence of the children and, therefore, there are no grounds for considering a divorce case by a justice of the peace?

It seems that such categoricalness does not follow from the content of family law. The presence of a dispute about children implies an active position of parents in deciding the fate of their child in the future, including the place of his residence. The position of one parent should be diametrically opposed to that of the other parent.

All other disputes related to the divorce process: on the procedure and amount of funds to be paid for the maintenance of children and (or) a disabled needy spouse, on the division of the joint property of the spouses, are also resolved by the justice of the peace.

When considering a case on dissolution of a marriage, a counterclaim may be filed to recognize this marriage as invalid. As explained by the Plenum of the Supreme Court of the Russian Federation in the Decree of November 5, 1998 "On the application of legislation by the courts when considering cases of divorce", the court has the right to consider in the same proceedings a counterclaim for declaring the marriage invalid (paragraph 11 of the Decree).

Since the case of recognizing a marriage as invalid refers to cases arising from family legal relations, and is not an exception for consideration by a justice of the peace, it can be considered by him as a counterclaim together with a claim for divorce.

Similarly, the issue of simultaneous consideration by the justice of the peace in the divorce proceedings of the requirement for the division of the joint property of the spouses arising from the marriage contract, on the recognition of this contract as completely or partially invalid, should be resolved, since such requirements are also interconnected.

Otherwise, the problem of cognizance should be resolved if, when filing a claim in a divorce proceeding for the division of the joint property of the spouses, one of the parties, opposing the inclusion in the division of all or part of the property indicated by the plaintiff, claims that it (in whole or in part) refers to his property (for example, acquired before marriage, received as a gift, by inheritance, etc.), and insist on recognizing his right to this property.

In this case, it is necessary to discuss the issue of separating these requirements into a separate proceeding. The competence of the justice of the peace to consider and resolve a case separated into a separate proceeding depends on the price of the counterclaim. If it exceeds 500 times the minimum wage, then the case is subject to referral to the district court, since in such a situation it becomes beyond the jurisdiction of the justice of the peace.

The justice of the peace should act in the same way in the case when the requirement to divide the joint property of the spouses affects the interests of third parties (for example, when the disputed property may relate to the property of a peasant (farm) economy, which, in addition to spouses, also includes members of the economy, or is the property of a housing-construction or other cooperative whose member has not yet fully contributed his share, in connection with which he has not acquired the ownership right to the relevant property allocated to him by the cooperative for use, etc.).

It is possible to bring a claim by a third party who has filed an independent claim regarding the subject of the dispute, which is the property included by the party (parties) in the object of division as the joint property of the spouses. The further fate of such a case, separated into a separate proceeding, from the point of view of its jurisdiction will depend on the assessment of the property claimed by the third party.

The cognizance of cases on the division between spouses (former spouses) of joint property to justices of the peace does not depend on the value of the claim. The same approach is applicable to other family law disputes of property content. In particular, such cases as the recovery of alimony, the change in the amount or termination of the payment of alimony, the termination or change in the terms of the agreement on the payment of alimony, the removal of debt on alimony, the collection of a penalty in the event of a debt due to the fault of a person obliged to pay alimony, as well as losses in the part not covered by the penalty from the person guilty of late payment of alimony, on exemption from payment of partially or completely debt on alimony, belong to the jurisdiction of the justice of the peace without limitation related to the price of the claim.

In addition to cases arising from family legal relations, labor cases also fall within the competence of the justice of the peace.

Labor disputes, which may be subject to consideration and resolution by courts of general jurisdiction, are divided into collective and individual.

Collective labor dispute unresolved disagreement between employees (and their representatives) and employers (their representatives) regarding the establishment and change of working conditions (including wages), the conclusion, amendment and implementation of collective agreements, agreements, as well as in connection with the refusal of the employer to take into account the opinion an elected representative body of employees when adopting acts containing labor law norms in an organization (Article 398 of the Labor Code of the Russian Federation).

Collective labor disputes (on the recognition of a strike as illegal) are within the jurisdiction of the supreme courts of the republics, territorial, regional courts, courts of cities of federal significance, courts of an autonomous region and autonomous districts. These courts consider collective labor disputes at the request of the prosecutor or the employer (Article 413 of the Labor Code of the Russian Federation).

Almost all individual labor disputes fall within the competence of the justice of the peace. The exception is cases of reinstatement at work, which are considered at first instance by district courts (Article 23 of the Code of Civil Procedure of the Russian Federation).

Individual labor dispute unresolved disagreements between the employer and the employee on the application of laws or other regulatory legal acts containing labor law norms, a collective agreement, an agreement, an employment contract, including the establishment or change of individual working conditions, which are declared to the review body individual labor disputes (Article 381 of the Labor Code of the Russian Federation).

This concept of an individual labor dispute has significantly expanded the possibilities of bodies called upon to consider labor disputes, including justices of the peace, to protect the labor rights of a particular employee.

A very important addition regarding the signs of a labor dispute is contained in Part 2 of Art. 381 of the Labor Code of the Russian Federation, according to which an individual labor dispute is recognized not only as a dispute between an employee and an employer, but also between an employer and a person who previously had an employment relationship with this employer, as well as a person who expressed a desire to conclude an employment contract with the employer, in case of refusal by the employer from the conclusion of such an agreement.

Individual labor disputes under the jurisdiction of magistrates can be conditionally classified into:

disputes related to the application of the norms included in the institution of an employment contract. This type, in turn, is divided into subspecies, due to the subject of the stated requirement and the peculiarities of its consideration, these, in particular, include:

disputes about making entries in the work book;

disputes about the groundlessness of suspension from work;

disputes about transfers to another job (including contesting transfers and changing essential working conditions);

disputes about payment for forced absenteeism, disputes about the payment of severance pay upon dismissal, disputes about the issuance of a work book and payment for the delay in its issuance;

disputes about the unlawfulness of actions or inaction of the employer in the processing and protection of personal data of the employee;

disputes about the early termination of an employment contract concluded for a certain period, disputes about the timing of the conclusion, termination and termination of an employment contract;

disputes over the application of working time legislation;

disputes related to the application of legislation on rest time;

wage disputes;

disputes over the application of legislation on guarantees and compensations;

disputes about the liability of the employer to the employee (for example, the obligation of the employer to compensate the employee for material damage caused to the latter as a result of illegal deprivation of work, for damage caused to the property of the employee);

disputes about the liability of the employee;

disputes about the application of measures of disciplinary liability of an employee;

disputes related to the application of legislation on the labor of women and persons with family responsibilities;

disputes related to the application of labor laws for workers under the age of 18;

disputes over the application of labor legislation on benefits for employees who combine work with education;

disputes concerning the peculiarities of labor regulation of certain categories of workers (for example, part-time workers; workers employed in seasonal work, who have concluded a contract for a period of up to two months, working on a rotational basis; home workers; persons working in the regions of the Far North and equivalent areas; pedagogical workers, workers of religious organizations, etc.).

In case of termination (termination) of the employment contract for any reason (by agreement of the parties to the employment contract, due to the expiration of the employment contract, at the initiative of the employee, at the initiative of the employer, in connection with the transfer to another enterprise, institution, organization, etc. ) and when an employee applies to the court with a request to be reinstated in his previous job, there is a labor dispute that does not fall under the jurisdiction of the justice of the peace, but is subject to consideration and resolution in the district court.

Among the individual labor disputes referred to the jurisdiction of the magistrate, it is necessary to specifically point out cases of the employee's liability for damage caused to the employer during the period of the employment contract. These cases are within the jurisdiction of the magistrate, regardless of whether claims are made for full or limited liability.

Unlike most individual labor disputes, for which the possibility of their resolution in the commission on labor disputes is provided, cases of material liability of an employee are considered directly by a justice of the peace.

A feature of the resolution of most individual labor disputes that fall within the competence of a justice of the peace is the right of an employee to apply to a labor dispute commission.

The basis for applying to the justice of the peace with a statement on the consideration of an individual labor dispute will be disagreement with the decision of the CCC, which has already been made on this dispute.

The circle of persons who have the right to apply with such a statement is strictly outlined. It is noteworthy that not only the employee and the trade union body, but also the employer have such a right. Moreover, the employer and the employee go to court to protect their interests, and the trade union to protect the interests of the latter at his request, and the employer is the defendant.

It should be noted that the Labor Code of the Russian Federation does not contain provisions on the obligatoryness of a preliminary out-of-court procedure for resolving an individual labor dispute by the CCC. A person who considers that his labor rights have been violated, at his own discretion, chooses the method of resolving an individual labor dispute and has the right either to initially apply to the CCC (except for cases that are considered directly by the court), and in case of disagreement with its decision, to the court within 10 days from the date handing him a copy of the decision of the commission, or immediately go to court (Article 382, part 2 of Article 390, Article 391 of the Labor Code of the Russian Federation).

Labor disputes within the jurisdiction of a justice of the peace should be distinguished from other disputes that may arise in the application of labor law. Yes, Art. 361 of the Labor Code of the Russian Federation provides for a judicial appeal against decisions of the state labor inspectorate. However, such complaints are considered in the manner prescribed for resolving cases arising from public legal relations. Such cases are not under the jurisdiction of justices of the peace. The same applies to the appeal to the court of the denial by the employer (authorized representative) of the fact of the accident or refusal to investigate the accident and draw up the relevant act (Article 231 of the Labor Code of the Russian Federation).

Justices of the peace also have jurisdiction over civil cases on property disputes at a price not exceeding 500 minimum wages established by law on the day of filing an application.

The concept of property is contained in Art. 128 of the Civil Code of the Russian Federation. The law refers to the objects of civil law things, including cash and securities, other property, including property rights; works and services; results of intellectual activity, including exclusive rights to them (intellectual property). A characteristic feature of property is its value. In contrast to property bearing material content, Art. 128 of the Civil Code of the Russian Federation also points to intangible benefits. Chap. 8 of the Civil Code of the Russian Federation, which is called: "Intangible benefits and their protection."

Since paragraph 5 of part 1 of Art. 23 Code of Civil Procedure of the Russian Federation refers property disputes to the jurisdiction of justices of the peace, then cases in which the requirements are reduced to the protection of non-property benefits are within the jurisdiction of the district court. This primarily concerns cases of protection of honor, dignity, business reputation, life, health, copyright protection.

Cases on compensation for harm caused to health or the loss of a breadwinner, including those that arose through the fault of the employer, are also beyond the jurisdiction of the justice of the peace.

Other disputes of a property nature (subject to limitation of the amount of claims) are within the jurisdiction of a justice of the peace. The list of these cases is quite extensive and in any case will not be exhaustive:

disputes about the right of ownership, recognition of the right of ownership, termination of the right of common shared ownership (partition, division, realization of the right of pre-emption), including real estate;

inheritance cases, including the restoration of the deadline for accepting an inheritance;

cases on recognition of transactions as invalid and on the consequences of the invalidity of transactions;

cases on the exclusion of property from the inventory (release it from arrest);

cases on disputes related to the protection of consumer rights;

cases on the execution of contracts, on changing their conditions, on their termination;

cases on the recovery of taxes, fines under tax and customs legislation;

cases of recovery of child allowances;

cases of debt collection on rent and utilities;

issues of establishing facts of legal significance (which, in the absence of a dispute about law, are resolved in a special proceeding) may be the subject of investigation by a justice of the peace, provided that the need to establish these facts is connected with a substantive claim that is within the jurisdiction of a justice of the peace (for example, in a case of recognition of the right to inheritance, the plaintiff asks to establish the fact of marriage registration or the fact of kinship with the testator, which is necessary to determine his rights to the inheritance).

All cases on property disputes, including those listed, can be accepted by the justice of the peace for its proceedings only if the applicant complies with the requirement to limit the price of the claim at the time of filing the statement of claim.

The jurisdiction of the justice of the peace also includes cases on determining the procedure for the use of property.

Any property, both immovable and movable, can be the object of a dispute on the procedure for use. Most often, disputes about the order of use arise regarding land plots and buildings. With regard to buildings, disputes over the procedure for their use may arise between participants in common property. The object of the dispute can be any land plot allocated for various needs, including for the creation of a peasant (farm) economy, personal subsidiary farming, construction of an individual residential house, construction of a dacha, for gardening and horticulture, for haymaking, grazing. Most often, a dispute regarding the procedure for using a land plot arises between the owners of buildings located on the land plot, between the owners of individual residential buildings located on adjacent (neighboring) plots, in particular, on the removal of obstacles to the use of the land, including in the case when its boundaries and dimensions are contested, and so on.

Disputes about the procedure for using movable property may arise between its participants in common shared or joint ownership, between persons using property on the basis of an agreement (for example, a lease agreement).

A citizen must necessarily participate in the dispute if he is not an entrepreneur or the dispute arose not in connection with his entrepreneurial activity.

The size of land plots, buildings and other movable or immovable property, as well as their value, do not matter for resolving the issue of referring the dispute on determining the procedure for using them to the jurisdiction of a justice of the peace.

However, if the dispute about determining the procedure for using property (for example, an individual residential building) is connected with a dispute about the ownership of it (recognition of the right to a share, division, allocation of a share, etc.), then these disputes in their totality will be jurisdictional to a justice of the peace or a district court, based on the value of the claim (clause 5, part 1, article 23 of the Code of Civil Procedure of the Russian Federation).

The ratio of the jurisdiction of the district court and the magistrate allows us to speak about the existence of the so-called "mobile tribal jurisdiction." The fact is that before the introduction of the institute of justices of the peace, tribal jurisdiction (i.e., the distribution of competence to consider civil cases at first instance between general courts of various levels) was quite clearly expressed and designed for its application when filing an application without a subsequent change in tribal jurisdiction when consideration of the case in the court that accepted the case for its proceedings in compliance with the rules of this jurisdiction. The exception was cases when, under certain circumstances, the case was accepted for consideration at first instance by a higher court.

The situation has changed in connection with the transfer to justices of the peace of a part of civil cases, previously from the point of view of tribal jurisdiction related to the jurisdiction of district courts.

The complexity of this situation lies in the fact that a civil case accepted by a justice of the peace for its consideration and resolution, in compliance with the rules of tribal jurisdiction, during its further movement, may acquire signs that relate the case to the jurisdiction of the district court. Procedural actions of the parties may also lead to a change in jurisdiction. Thus, the plaintiff changes the volume of claims in a property dispute, due to which the price of the claim becomes more than 500 minimum wages. It is possible for the plaintiff to change the subject of the claim. For example, initially, when raising the issue of collecting wages for the time of his illegal suspension from work, the employee, having convinced himself of the employer’s unwillingness to fulfill his promise to voluntarily provide him with his previous job, applies for reinstatement on the grounds of the illegality of such suspension.

The defendant is also capable of influencing the generic jurisdiction by filing a counterclaim, the satisfaction of which may lead to a complete or partial refusal of the original claim. So, when considering a justice of the peace case on a claim for the recovery of alimony for a child, the defendant may file a counterclaim, which disputes his paternity in relation to the child. In a divorce case, the plaintiff or defendant may bring a dispute over the place of residence of the children.

The entry into the case of a third person who has made independent claims on the subject of the dispute also leads to a change in the generic jurisdiction. For example, when the justice of the peace was considering a case on the division of property, which, according to the plaintiff, belongs to the common property of the spouses, a statement was received from the mother of the defendant that part of the property indicated by the plaintiff belongs to her by right of ownership, while the value of the property she is looking for exceeds 500 minimum wage rates.

It should be noted that the actions of the judge can also contribute to the "transition" of the case from "one generic jurisdiction to another", in particular when the judge, in the event of a clear discrepancy between the price indicated by the plaintiff and the actual price of the claimed property, independently determines the price of the claim (part 2 of article 91 Code of Civil Procedure of the Russian Federation), or when they combine several cases into one proceeding, of which at least one is within the jurisdiction of the district court.

The consequences of changing tribal jurisdiction are defined by Part 3 of Art. 23 of the Code of Civil Procedure of the Russian Federation, which states: when combining several interconnected claims, changing the subject of the claim or filing a counterclaim, if new claims become cognizable to the district court, while others remain cognizable to the justice of the peace, all claims are subject to consideration in the district court. In this case, if the cognizance of the case has changed in the course of its consideration by the magistrate, the magistrate shall issue a ruling on the transfer of the case to the district court.

The district court is obliged to accept cases for its proceedings, even if it has doubts about the correctness of such an action on the part of the justice of the peace. Any disputes between a justice of the peace and a district court regarding jurisdiction are unacceptable (part 4 of article 23 of the Code of Civil Procedure of the Russian Federation).

On the decision of the justice of the peace on sending the case for consideration and resolution of the district court, a private complaint may be brought to the appellate instance.

To this it should be added that the district court is not entitled to transfer a civil case accepted by it in compliance with the rules of tribal jurisdiction to a justice of the peace if, during the consideration of the case by him, it acquired signs of jurisdiction of the justice of the peace. In this case, the rule applies, according to which the case, accepted by the court for its proceedings in compliance with the rules of jurisdiction, must be resolved by it on the merits, even if later it becomes cognizable to another court (part 1 of article 33 of the Code of Civil Procedure of the Russian Federation).

With regard to territorial jurisdiction, i.e. distribution of cases between courts of one link in the system of courts of general jurisdiction, then for justices of the peace there are no exceptions to the general rules established by Art. Art. 28 32 Code of Civil Procedure of the Russian Federation, does not exist.

The justice of the peace carries out activities within the limits of his judicial area. Judicial districts, as well as the positions of magistrates, are created and abolished by the laws of the constituent entities of the Russian Federation (Article 4 of the Federal Law "On Justices of the Peace in the Russian Federation"). In order to comply with the rules of territorial jurisdiction, the justice of the peace and the persons applying to him with the appropriate statement must clearly understand the territory served by the justice of the peace.

Since there is only one justice of the peace in one district, a temporary suspension of the performance of his functions of administering justice due to certain circumstances, for example, due to illness, vacation, business trip, study, etc., is not excluded. In this regard, there is a need to transfer the case accepted by this justice of the peace to its production, to another justice of the peace serving a different area. This problem is currently being solved in accordance with paragraph 3 of Art. 8 of the Federal Law "On Justices of the Peace in the Russian Federation" (as amended by the Federal Law of November 30, 2004 N 142FZ). According to this norm, upon termination or suspension of the powers of a justice of the peace, as well as in the event of a temporary absence of a justice of the peace (illness, vacation and other good reasons), the performance of his duties is assigned to a justice of the peace of another judicial division of the same judicial district by a decision of the chairman of the relevant district court. If a single position of justice of the peace has been created in a given judicial region, then in the event of termination or suspension of the powers of a justice of the peace, as well as in the event of a temporary absence of a justice of the peace (illness, vacation, or other valid reasons), the execution of his duties by a decision of the chairman of a higher court or his deputies shall be entrusted to the justice of the peace. a judge operating in the nearest judicial district.

§ 2. The order of consideration and resolution of civil cases by a justice of the peace

When accepting a statement of claim, the justice of the peace must make sure that its requirements for form and content, provided for in Art. 131 Code of Civil Procedure of the Russian Federation. However, this takes into account the peculiarities inherent in cases related to the jurisdiction of the justice of the peace. This applies to cases arising from labor relations. Not only an employee and a trade union acting in the interests of an employee, but also an employer challenging the correctness of the decision of the CCC can apply to the court for resolution of an individual labor dispute. In this case, the procedural form of the application (appeal), as well as its content, differs from the statement of claim. This application (appeal) should not be in the nature of a statement of claim filed on behalf of the employee, since the employer does not have such a right. The application (appeal) itself must have signs of an official document coming from the employer: made on a letterhead, signed by a person who has the right to affix this document with his signature, certified by a seal, and also contain all other essential details of this type of document. It indicates: data on the person who applied for the resolution of an individual labor dispute to the labor dispute commission, his location, what the employee's demand was, on what it is based; what decision was made by the CCC and on what grounds the employee's claim was fully or partially satisfied; why the employer believes that the requirements of the employee were not subject to satisfaction; on what evidence is this assertion based?

The application (appeal) without fail, in addition to its copy intended for the employee, is accompanied by a copy of the decision of the CCC indicating when it was handed over to the employer. The latter is necessary to find out whether the ten-day period for applying to a justice of the peace has not been missed (Article 390 of the Labor Code of the Russian Federation). If the deadline is missed, the employer has the right in the same application to ask the justice of the peace to restore the missed deadline, indicating good reasons for missing.

The employer's application may also contain other types of petitions, in particular, for the inclusion of written evidence in the case, for the summoning of witnesses to the court session, for the appointment of an examination, etc.

Despite the fact that in this case the initiative to initiate a case comes from the employer, the plaintiff in this case is an employee who believes that his rights have been violated by the employer. By virtue of this, the latter will occupy the position of the defendant in the process.

The above also affects the decision on the issue of state duty when an employer submits an application. Since, according to Art. 393 of the Labor Code of the Russian Federation, when applying to the court with a claim for claims arising from labor relations, the employee as a plaintiff is exempt from paying duties and court costs, and the essence of an individual labor dispute from the point of view of the parties and its content does not change, regardless of who initiated it the transfer of this dispute to the body for the consideration of an individual labor dispute of a different level, the employer's application to the justice of the peace should also not be subject to state duty.

At the same time, the employer's statement of claim for compensation for the harm caused by the employee is subject to payment of state duty, except in cases where the material damage was caused by a crime.

As already mentioned, according to Art. 391 of the Labor Code of the Russian Federation, a labor dispute case with a justice of the peace can be initiated by a trade union protecting the interests of an employee, as well as at the request of the prosecutor, if the decision of the labor dispute commission does not comply with the law or other regulatory legal acts. This provision of the Labor Code of the Russian Federation should be considered taking into account the content of Art. Art. 46 and 47 Code of Civil Procedure of the Russian Federation.

Trade unions participate in the protection of labor rights of a citizen (Articles 19, 23 of the Federal Law "On Trade Unions, Their Rights and Guarantees of Their Activities"). Trade unions can bring claims on their own behalf in defense of the rights of union members and other workers at their request. In this case, although the trade unions are not a party to the case, they enjoy all procedural rights and bear all the procedural obligations of the plaintiff, with the exception of the right to conclude a settlement agreement and the obligation to pay court costs. Occupying the position of a procedural plaintiff, trade unions must submit a statement of claim in accordance with the requirements of Art. 131 Code of Civil Procedure of the Russian Federation, substantiate and support in court the requirements with which they applied to the justice of the peace in order to protect the interests of the employee, and perform all procedural actions in the same volume and in the same manner as the plaintiff in the material sense.

Starting to prepare the case for trial, the justice of the peace focuses on the tasks of this stage of the civil process, listed in Art. 148 Code of Civil Procedure of the Russian Federation. The choice of preparation actions, their content, volume and focus, as well as the degree of participation in the preparation of the parties, are determined by the characteristics of each specific case, both of a substantive and procedural nature.

So, resolving the issue of the composition of the persons participating in the case on determining the procedure for using the land plot, the justice of the peace will proceed from the circle of persons who are the owners (users) of this immovable property.

Determining what circumstances are important for a case arising from an employment relationship, and which party must prove them, the magistrate will proceed from the position that, as a rule, the obligation to prove the legitimacy of his behavior lies with the employer. It is from the employer objecting to the claim that evidence should be demanded that the content of the employment contract complies with the conditions defined by law and other regulatory legal acts, and that the employee has committed a labor misconduct. The application of his disciplinary sanction is in accordance with federal law.

In the preparatory hearing in accordance with the provisions of Article. 152 of the Code of Civil Procedure of the Russian Federation, questions about missing the deadlines for applying to a justice of the peace for resolving a dispute can be resolved. In addition to the general limitation periods for disputes under the jurisdiction of a justice of the peace, for certain categories of cases there are special limitation periods established by law that regulate specific legal relations. For example, according to Art. 392 of the Labor Code of the Russian Federation, an employee has the right to apply to the court for resolution of an individual labor dispute within three months from the day when he learned or should have learned about the violation of his right (with the exception of reinstatement cases considered by district courts, where the period is set at one month from the date of delivery of a copy of the dismissal order or from the date of issue of the work book). The limitation period for the employer's claim for compensation by the employee for damage caused to the organization is one year from the date of discovery of the damage caused.

If the defendant objects to the claim and in the absence of data indicating the validity of the reason for missing the deadline, the justice of the peace, already in the preliminary court session, has the right to make decisions to dismiss the claim without examining other factual circumstances in the case (part 6 of article 152 of the Code of Civil Procedure of the Russian Federation).

Judicial proceedings in civil cases referred to the jurisdiction of a justice of the peace are subject to the general rules of civil proceedings. The only thing that relates to the specifics of the activities of a justice of the peace is that in all cases he considers the case alone (part 3 of article 3 of the Federal Law "On Justices of the Peace in the Russian Federation"), and the time limit for considering a case is set within a month from the day the application is accepted for production (Article 154 of the Code of Civil Procedure of the Russian Federation).

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Litigation in civil cases

Plan

1. Topic 9: Jurisdiction of civil cases. Task number 5

2. Topic 7: Court costs. Judicial fines. Task number 16

3. Topic 19: Proceedings in cases arising from public relations. Task number 8

4. Topic 25: Proceedings related to the use of court decisions and decisions of other bodies. Task number 7

5. Topic 12. Task number 9

6. Topic 11. Task number 25

jurisdiction court proceedings public legal relationship

Topic 9:Jurisdiction of civil cases. Task #5

Determine the jurisdiction of the following cases:

a) on the verification of the constitutionality of normative acts adopted by the administration of the city of Voronezh;

b) on appeal by the partnership "Rossi" of the order of the deputy head of the regional administration "On the taxation of business entities";

c) on appealing against the order of the Inspectorate of the Ministry of Taxes and Duties of the Russian Federation;

d) at the request of the Ivanovo Combine to the tax authorities to refuse to register a closed joint stock company;

e) at the request of Bukin, an entrepreneur without forming a legal entity, to the partnership "Object" - the owner of a paid parking lot for compensation for damage caused by the theft of a car belonging to the plaintiff from it.

Solution: Jurisdiction in civil proceedings has the task of accurately determining the range of civil cases, the resolution of which by law is assigned to the competence of a certain state body or public organization. The jurisdiction of lawsuits to courts of general jurisdiction is determined by the method of exclusion, that is, they consider all cases, except for those that are directly assigned to the jurisdiction of arbitration courts. Therefore, it is important to correctly distinguish between the competence of general and arbitration courts. As a general rule, the assignment to the jurisdiction of arbitration courts of claims is carried out on the basis of two signs in aggregate: firstly, the nature of the dispute - it is economic, related to the implementation of entrepreneurial activity; secondly, the characteristics of the disputing subjects are legal entities and citizens-entrepreneurs. In accordance with this, the jurisdiction of the court is different - general or arbitration courts, as well as administrative, the jurisdiction of cases to public organizations - the arbitration court, exchange commissions, etc. Therefore, to determine the jurisdiction of civil cases to a general court means to find out which of them are subject to consideration by law in civil courts.

According to the foregoing, the subject of the dispute is under the jurisdiction of a court of general jurisdiction, is essentially not economic and is not related to entrepreneurial activity in the following cases: "a" - compliance with the Constitution of the Russian Federation, "b" - legality. The subject of the dispute is under the jurisdiction of the Arbitration Court, is essentially economic and is associated with the implementation of entrepreneurial activity in the following cases: "c" - related to taxation, "d" - related to the legal implementation of entrepreneurial activity, "e" - the object of entrepreneurial activity.

Topic 7:Court expenses. Judicial fines. Task number 16

Mineev, acting through a representative, sued the publisher of one journal for the recovery of royalties in the amount of 15,800 rubles. The court summoned on its own initiative three witnesses, one of whom came from Vladivostok, the other two were from the same city where the case was being considered. With the consent of the parties, the court conducted an author's examination.

The court satisfied the claim in part, recovering 9870 rubles.

Do you have questions about legal costs?

Solution: Court costs are the costs incurred by the persons participating in the case, in connection with and in connection with the consideration and resolution of a civil case in a court of general jurisdiction, as well as justices of the peace.

There are two types of court costs: 1) state duty; 2) the costs associated with the consideration of the case (legal costs).

The state duty is understood as a mandatory payment established by law and valid throughout the entire territory of the Russian Federation, charged for the performance of legally significant actions (for example, the acceptance of a statement of claim, appeal, cassation, supervisory complaints) or the issuance of documents. The amount and procedure for payment of the state duty is regulated by the Law of the Russian Federation of December 9, 1991 "On the State Duty". There are two types of state duty:

1) proportional - collected from statements of claim and complaints against court decisions in cases of a property nature and depends on the value of the claim, determined according to the rules established by Art. 91 Code of Civil Procedure;

2) fixed, which is determined depending on the category or nature of the claim subject to payment of the state duty in the amount of a multiple of the minimum wage established by law.

The first type of state duty - proportional - depends on the price of the claim.

The price of a claim is an institute of claim proceedings that characterizes the monetary value of the subject of the dispute between the plaintiff (a third party who makes independent claims regarding the subject of the dispute in accordance with Article 42 of the Code of Civil Procedure) and the defendant. The price of the claim is not determined for non-property penalties, as well as for cases of special proceedings listed in Art. 262 of the Code of Civil Procedure, and proceedings in cases arising from public legal relations referred to in Art. 245 Code of Civil Procedure.

As for the claims for compensation for moral damage, the price of the claim is also not indicated in them. This is due to the fact that moral damage, although determined by the court in a specific amount of money, is recognized by law as non-property damage, and, therefore, the state duty on such claims does not depend on the monetary equivalent of the amount of compensation for damage (this circumstance was specifically pointed out by the Plenum of the Supreme Court of the Russian Federation in the Resolution of August 18, 1992 No. 11 "On some issues that arose during the consideration by the courts of cases on the protection of the honor and dignity of citizens, as well as the business reputation of citizens and legal entities" as amended on December 21, 1993)1.

If the subject of the claim is a specific amount of money, then the price of the claim depends on the amount being recovered. The price of the claim should not include court costs: for the assistance of a lawyer or other representative, for the plaintiff's travel to the place of consideration of the case, postage, etc. costs that the plaintiff has incurred or expects to incur in connection with the consideration of his case in court.

The costs associated with the consideration of the case include: amounts payable to witnesses and experts; the cost of performing an on-site inspection.

According to Art. 94 of the Code of Civil Procedure, legal costs include: amounts payable to specialists; costs of paying for the services of an interpreter; expenses for paying for the services of a representative; compensation for the actual loss of time; travel and accommodation expenses of the parties and third parties in connection with their appearance in court; postage costs in the case borne by the party.

When deciding on the issue of advancing the costs of expert research, participation in the evidence process of a specialist and the involvement of witnesses from other cities, the principle applies: the one who asks the court (judge) to perform the relevant procedural action pays. If the operative part of the court decision indicates full satisfaction of the claims, then in the same part the judge is obliged to indicate the recovery from the defendant in full of the state fee paid by the plaintiff, as well as all other expenses of the plaintiff, classified by law as court costs. If several subjects acted on the side of the defendant (i.e. there was passive procedural complicity), the court costs incurred by the plaintiff are reimbursed from each defendant in direct proportion to the amount of money recovered from him (the value of the award).

In the event of a complete and unconditional refusal of the court to satisfy the stated claims, all legal costs of the defendant are subject to recovery from the plaintiff, which is also indicated in the operative part of the judgment.

If the claim is partially satisfied, then the court costs are distributed between the parties in proportion to the procedural result achieved. For example, if the court decides to satisfy one third of the stated claims, then two thirds of the court costs must be borne by the plaintiff, and one third by the defendant.

If, for some reason, the judge does not indicate in the operative part of his decision on the distribution of court costs between the parties, this deficiency can be corrected by issuing an additional decision, but only until this court decision enters into legal force. After the court decision, which ignored the distribution of court costs, enters into legal force, the court costs may be recovered by the person who incurred them in a general lawsuit.

Court rulings on court costs are appealed privately. A complaint may be filed within 10 days from the date of issuance of the challenged judicial act and is not subject to payment of state duty. If the issue related to court costs is resolved in a court decision, then a private complaint is not possible; an indication of the incorrect distribution of court costs should be contained in the cassation (and when resolving the case by a magistrate - an appeal) complaint.

In accordance with the foregoing and guided by paragraph. 1 Article. 98 Code of Civil Procedure of the Russian Federation: " If the claim is partially satisfied, the court costs specified in this Article shall be awarded to the plaintiff in proportion to the amount of the claims satisfied by the court, and to the defendant in proportion to that part of the claims in which the plaintiff was denied.”, and, accordingly, 9870 rubles - of the total amount of the claim is 62.47%, which means that 62.47% of these costs are additionally withheld from the defendant for calling witnesses and conducting an examination, the rest is borne by the plaintiff - 37.53%.

Topic 19 hhell 8

Citizen Ch. applied to the Sverdlovsk Regional Court with an application for the recognition of the Law of the Sverdlovsk Region of November 1, 1995 No. 30-03 “On Guarantees of Legal Assistance to the Population of the Sverdlovsk Region” contrary to the Federal Law of May 31, 2002 No. 63-F3 “On Lawyers activity and advocacy in the Russian Federation” to the extent that the obligation to provide free legal assistance in civil proceedings is assigned only to the Bar Association (Article 8), while the said federal law also establishes other forms of associations of lawyers. The judge of the regional court refused to accept the application, citing the absence in the application of an indication of the source of publication of the contested normative legal act.

Did the court do the right thing?

What will change if the court finds that the contested normative act:

Solution

According to Art. 1 (part 2) and 22 of the Code of Civil Procedure of the Russian Federation, cases arising from public law relations and attributed by law to the jurisdiction of courts of general jurisdiction are one of the varieties of civil cases. Within the meaning of Part 1 of Art. 246 of the Code of Civil Procedure of the Russian Federation, proceedings in cases arising from public law relations can be characterized as civil proceedings, carried out taking into account certain exceptions and additions established by Ch. 23-26 Code of Civil Procedure of the Russian Federation. The need for their introduction is due, firstly, to the special tasks that are assigned to the court when considering such cases, and, secondly, the specifics of the cases themselves, in particular the unequal position of the parties - participants in various kinds of legal relations arising in the public law sphere, since these legal relations are characterized by an imperious and imperative character.

When resolving cases arising from public law relations, the court exercises control over the observance of the law in the activities of representative and executive authorities, public associations, as well as officials, state and municipal employees. The exercise of control powers involves the activation of the role of the court in the implementation of the trial and the introduction of certain restrictions on the implementation of the principle of dispositivity.

In accordance with Part 3 of Article 247 of the Code of Civil Procedure of the Russian Federation, the court checks the legality of the contested (in whole or in part) act or action as such, and not only in connection with the specific circumstances that were the reason for the applicant's appeal to the court. For example, the court in all cases is obliged to check whether the challenged act was adopted or whether the challenged action was performed within the competence of the state body or official established by law.

An application submitted to the court to challenge a normative legal act in its form and content must meet the requirements of Art. 131 of the Code of Civil Procedure of the Russian Federation and, in addition, contain data on the name of the state authority, local self-government body or official that adopted the disputed normative legal act, its name and date of adoption, as well as an indication of what rights or freedoms of a citizen or an indefinite circle persons are violated by this act or part of it. The application must also contain the name of the normative legal act, which has greater legal force and for the compliance with which the challenged normative act or its individual provisions should be checked.

In those cases when the contested normative legal act was published (the text of the regional law of November 1, 1995 N 30-OZ "On guarantees of legal assistance to the population of the Sverdlovsk region" was officially published in the Regional Newspaper of November 10, 1995 N 121 page 4, as well as amended by the following documents: Law of the Sverdlovsk Region dated July 24, 1997 N 47-OZ), a copy of the text of this regulatory legal act or part thereof must be attached to the application for contesting it, indicating which mass medium information and when this act was published (Part 6, Article 251 of the Code of Civil Procedure of the Russian Federation). Therefore, on the basis of the above analysis, answering the first half of the task, I will answer that the judge of the regional court did the right thing by refusing to accept the application with reference to the absence in the application of an indication of the source of publication of the contested regulatory legal act.

a) If the court establishes that the contested normative act: has not been published, then, although Article 251, Part 1, refers to a normative legal act “published in the prescribed manner”, the absence of publication does not give grounds for refusing to accept an application for contesting a normative legal act, but can only be one of the grounds for recognizing this act as invalid.

Consideration of a case on contesting such an act may be carried out according to the rules of Ch. 25 Code of Civil Procedure of the Russian Federation, i.e. in the procedure for proceedings in cases of challenging decisions, actions (inaction) of a state authority, local governments, officials, state and municipal employees.

The Code of Civil Procedure of the Russian Federation does not disclose the concept of the term "normative legal act", therefore, you can use the explanations contained in the Decree of the Plenum of the Supreme Court of the Russian Federation dated January 20, 2003 No. 2. On some issues that have arisen in connection with the adoption and entry into force of the Civil Procedure Code Russian Federation.

According to paragraph 2 of the said resolution, a normative legal act is understood as an act issued in the prescribed manner by an authorized state authority, local government or official, establishing legal norms (rules of conduct) binding on an indefinite circle of persons, designed for repeated application, valid regardless of whether the specific legal relations provided for by the act have arisen or terminated.

Article 255 of the Code of Civil Procedure of the Russian Federation establishes the criteria for the admissibility of a judicial review of actions and decisions contested in the order of Ch. 25 of the Code of Civil Procedure of the Russian Federation, which, however, should not be interpreted as grounds for refusing to exercise the right to judicial protection, i.e. refusal to accept the application and initiation of civil proceedings.

It is unacceptable, for example, to refuse to accept an application due to the fact that the disputed act or action did not entail a violation of the applicant's rights, etc. The presence of a real causal relationship between the adoption of the disputed act, the commission of the disputed action and the occurrence of legal consequences specified in Art. 255, as well as the very fact of the occurrence of consequences that can be qualified as a violation of the right, obstruction in the exercise of rights and freedoms, unlawful imposition of duties and prosecution, are to be established at the stage of the proceedings, i.e. at the court session. And even in the case when, when comparing the content of the disputed act or action with the content of the norms of legislation and the ensuing powers of the applicant, the violation of which the latter refers to, a clear discrepancy is found between them, excluding the possibility of violating the rights and interests of the applicant by a specific act or action. , the court is obliged to accept the application for proceedings. In this case, based on the results of consideration of the application, the court makes a decision to refuse to satisfy the requirements contained in it.

b) the contested normative act was published, but was not applied in practice? - this means that the court will refuse to apply the normative legal act when considering a specific dispute about the law between the parties. With this method of verifying the legality of a normative legal act, it occurs within the framework of the resolution of a subjective dispute about the right by the court and does not entail the loss of legal force by this act. Having established that a normative legal act does not comply with a normative legal act that has greater legal force, the court applies the norms of the act that has the greatest legal force (part 2 of article 11 of the Code of Civil Procedure of the Russian Federation).

Tema25 Task 7

Indicate which of the following violations are grounds for refusing to initiate enforcement proceedings:

a) the writ of execution was signed by a judge who was not a member of the court that issued the decision;

b) the writ of execution issued on the basis of the ruling on securing the claim does not indicate the name of the exactor, his place of residence;

c) the court order does not indicate the period for presenting it for collection;

d) the date of entry into force of the court decision is not indicated in the writ of execution;

e) the writ of execution does not contain information about the date and place of birth of the debtor, the place of his work;

f) the date of its issue is not indicated in the writ of execution;

g) the writ of execution does not contain information about the date of adoption of the judicial act on the basis of which it was issued;

h) the writ of execution issued on the basis of the decision of the Justice of the Peace of Court District No. 1 is signed by the Justice of the Peace of Court District No. 3 ( option: the chairman of the district court);

i) the writ of execution is set out on two sheets, not fastened together.

Solution

Proceedings related to the execution of court decisions of July 21, 1997 No. 119-FZ “on enforcement proceedings”, in accordance with paragraph 1 of Art. 9 of this resolution, the bailiff is obliged to accept for execution the executive document from the court or other body that issued it, or the recoverer and initiate enforcement proceedings if the deadline for presenting the executive document for execution has not expired and this document meets the requirements provided for in Article 8 of this Federal Law .

Article 8

1. The executive document must contain:

1) the name of the court or other body that issued the enforcement document;

2) the case or materials on which the writ of execution was issued, and their numbers;

3) the date of adoption of a judicial act or an act of another body subject to execution;

4) the names of the claimant-organization and the debtor-organization, their addresses; surname, name, patronymic of the recoverer-citizen and debtor-citizen, their place of residence, date and place of birth of the debtor-citizen and place of his work;

5) the operative part of a judicial act or an act of another body;

6) the date of entry into force of a judicial act or an act of another body;

7) the date of issuance of the executive document and the deadline for presenting it for execution.

2. An executive document issued on the basis of a judicial act is signed by the judge and certified by the official seal of the court.

An executive document issued on the basis of an act of another body is signed by an official of this body, and in cases established by federal law, by the person who issued the executive document. The executive document is certified by the seal of the body or person that issued it.

In connection with the foregoing, the grounds for refusing to initiate enforcement proceedings from the proposed options are: a, b, c, d, e, f, g, h.

Ttheme 12 task 9

Gritsatsuyeva filed a lawsuit against OJSC Beta-Bank for the collection of interest under a bank deposit agreement. The plaintiff argued that the bank unlawfully unilaterally changed the amount of interest charged on the amount of the deposit. Simultaneously with the filing of the statement of claim, the plaintiff filed a motion to seize the funds on the correspondent account of the defendant. The court issued a ruling on the refusal to apply the specified interim measure, arguing that the funds on the correspondent account are not the property of the bank. The court considered that the seizure of these funds would actually limit the rights of the bank's clients to dispose of their funds. In an oral conversation, the judge suggested that Gritsatsuyeva file a motion to seize not the money, but the account itself.

Evaluate the actions of the court.

Solution :

Citizen Gritsatsuyeva legally filed a claim for the recovery of interest on a bank deposit, as well as in the allegation that the bank had not lawfully changed the amount of interest on the amount of the accrued deposit.

In accordance with Art. 29 of the Federal Law “On Banks and Banking Activities” No. 395-1, a credit institution does not have the right to unilaterally change interest rates on deposits.

Since the Federal Law of December 1, 1990 No. 395-1, Article 27 “On Banks and Banking Activities” states that when seizing funds, a credit institution immediately upon receipt of a decision to seize stops debit transactions on this account.

Filing a petition for seizure of funds that are on the correspondent account of the defendant (bank) is illegal on the basis of Art. 35 of the constitution and article 27 of the Federal Law “On Banks and Banking”, because violate the property legitimate interests of other investors, that is, cause moral and property damage.

In this regard, the court's decision to refuse to apply the specified interim measure, citing the fact that the funds in the correspondent account and are not the property of the bank, is completely legal.

The actions of the judge during an oral conversation with gr. Gritsatsuyeva to file a petition for seizure of the current account of a citizen is legitimate, t.to. when issuing a decision to seize the account of Gritsatsuyeva, the bank will not be able to use these funds from the account of gr. Gritsatsueva.

To the Kirovsky District Court of Ufa, Republic of Belarus

Claimant: Gritsatsueva Elena Vladimirovna

Ad.: Republic of Belarus, Ufa, st. Kirova, d. 85, apt. 46

Respondent: OJSC "Beta-Bank"

Statement of claim

collection of interest under a bank deposit agreement

On February 19, 2013, I, a citizen of Gritsatsuyeva, entered into a bank deposit agreement with Beta-Bank OJSC. According to this agreement, the amount of interest accrued on the deposit amount is 12 percent. According to my statement, the bank did not lawfully unilaterally change the amount of interest. According to Article 29 of the Federal Law “On Banks and Banking Activities” No. 395-1, a credit institution does not have the right to unilaterally change interest rates on deposits.

The deposit amount is _________________________ (amount in figures and words) rubles.

The amount of interest that the defendant is obliged to accrue on the deposit by the date of return of the deposit amount is ______________ (amount in figures and words) rubles.

In connection with the above,

1. Collect from the defendant in my favor interest on a deposit in the amount of ______ rubles.

2. Seize my current account in this bank.

Applications:

1. A document confirming the conclusion of a bank deposit agreement (agreement, savings book, savings or deposit certificate, other document).

2. A copy of the application containing the requirement to return the deposit amount and pay interest accrued on the deposit.

3. A document confirming the payment of the state fee.

4. A copy of the statement of claim for the defendant.

Tema 11A task 25

In court, a case was heard on a claim for ownership of part of the house. The court appointed an examination, appointing an engineer of the department of the city's chief architect as an expert. During the trial, the judge, having finished examining the testimonies of witnesses, turned to written evidence, listing what evidence (including the expert's opinion) was in the case. The parties did not have any questions about the listed evidence available in the case file.

The court ruled, substantiating it, in particular, with an expert opinion.

The defendant filed a cassation complaint, substantiating it by the fact that the parties were not asked questions to the expert. In addition, contrary to the ruling of the court, the examination was conducted by another expert.

Discuss issues related to the procedure for appointing an examination and examining an expert's opinion in court.

What questions would you ask an expert in a house division dispute?

Solution

According to the Civil Procedure Code of Article 79. Appointment of an examination

1. If issues arise during the consideration of a case that require special knowledge in various fields of science, technology, art, craft, the court appoints an expert examination. The examination may be entrusted to a forensic institution, a specific expert or several experts.

2. Each of the parties and other persons participating in the case shall have the right to submit to the court the issues to be resolved during the examination. The final range of issues on which an expert opinion is required is determined by the court. The court is obliged to motivate the rejection of the proposed questions. The parties, other persons participating in the case, have the right to ask the court to appoint an examination in a specific forensic institution or to entrust it to a specific expert; challenge an expert; formulate questions for the expert; get acquainted with the court ruling on the appointment of an examination and with the questions formulated in it; get acquainted with the expert's opinion; to petition the court for the appointment of a repeated, additional, complex or commission examination.

In this task, an expert examination was appointed by the ruling of the court. During the trial, the expert’s opinion was heard, since the parties did not have any questions about the listed documents available in the case file, which included the expert’s opinion, the defendant’s actions when filing a cassation complaint that no questions were asked to the expert are unreasonable. An indication in the complaint that, according to the court ruling on the appointment of an examination, this examination was carried out by another expert is not valid.

If the conditions of paragraph 3 of Article 85 of the Code of Civil Procedure of the Russian Federation were observed, the conclusion on the basis of Art. 86, which makes him an expert.

Questions:

Can it be dividedthis property (part of the house)?

Is it possible to divide a dwelling or allocate a share in a dwelling in kind?

Is it possible to divide a house without disproportionate division of property?

To the Presidium of the Supreme Court of the Republic of Belarus

Plaintiff: Svetlakova N.S.

Respondent: Ivanov A.N.

Appeal

in a civil case against a court decision

On April 20, 2011, the Sovetsky District Court ruled in a civil case on the claim of N.S. Svetlakova. to Ivanov A.N. about the ownership of part of the house. The court ruled in favor of the ownership of part of the residential building, substantiating it, in particular, with an expert opinion.

I believe that when issuing a court ruling on the appointment of a forensic examination, the norms of procedural law were significantly violated - Art. 86 Code of Civil Procedure of the Russian Federation, taking into account Art. 252 of the Civil Code of the Russian Federation, because no questions were asked to the expert about the possible division of the dwelling or to allocate a share in the dwelling in kind without disproportionate damage to the economic purpose of the building. As well as the norms of substantive law - according to the decision of the judge, expert Pilipenko I.A. was appointed to appoint an examination, and in the written opinion of the expert there is the name Danilov A.V., which directly contradicts Art. 84-86 Code of Civil Procedure of the Russian Federation.

The committed violations significantly influenced the court decision in the case, without the elimination of the committed violations, it is impossible to restore and protect the violated rights, freedoms and legitimate interests.

Based on the foregoing, guided by Articles 376, 387, 390 of the Civil Procedure Code of the Russian Federation,

I beg:

1. To cancel the decision of the Soviet District Court of April 20, 2011 in a civil case on the claim of Svetlakova N.S. to Ivanov A.N. about the ownership of part of the house.

2. Issue a new ruling in this case without taking into account the expert's opinion.

List of documents attached to the complaint(copies according to the number of persons participating in the case):

1. Copy of the cassation appeal

2. Document confirming the payment of the state fee

3. A copy of the judgment of the Soviet District Court dated April 20, 2011, certified by the court

List of literaturery

1. Tikhomirova L. V., Tikhomirov M. Yu., "Legal Encyclopedia". Edition 6, supplemented and revised / Ed. M.Yu. Tikhomirov. - M.: Ed. Tikhomirova M. Yu. 2008. - 1088 p.

3. Federal Law of June 12, 2002 No. 67-FZ “On Basic Guarantees of Electoral Rights and the Right to Participate in a Referendum of Citizens of the Russian Federation”.

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Types of civil cases in court

Firstly, writ proceedings, it is a documentary and indisputable confirmation of a specific judicial proceeding. As a rule, this proceeding is based on a court order, which is also a court order issued by a single judge. Here, cases can be considered, for example, in relation to sums of money and their recovery from the debtor. A court order, which is also considered in the course of a court case, is most often referred to as the jurisdiction of the justice of the peace.
Secondly, this is a lawsuit, which is based on civil cases on disputes of law. The main difference of this type of proceedings lies in its competitiveness, that is, the trial process takes place in the form of a dispute between two interested parties before the participants in the trial. In this case, each party has every right to submit its claims.
Thirdly, special production. A special proceeding is a special type of civil court proceeding that does not have a claim on the right, that is, there are no disputing parties and various legal interests. First of all, a particular proceeding is one in which there is only a unilateral statement.
Fourthly, this is a proceeding arising from public legal relations. At their core, these are independent cases, which are varieties of civil legal proceedings. Such cases are aimed at judicial control over the processes of implementation of the legality of specific state bodies.

Complaint in civil cases

Remark 2

It is worth noting that in order to file a claim, it is important to use ready-made forms and samples. Only in this way can you avoid possible mistakes and submit your claim to the judicial organization as soon as possible.

The statement of claim is filed at the place of residence or place of registration of the citizen/legal organization of the defendant. Thus, the defendant will be summoned to court for the purpose of considering a particular court case.

The plaintiff, in turn, pays the state fee for the process of consideration and adjudication, and also writes a statement of claim, based on evidence and his judicial requirements.

The introduction of justices of the peace was provided for by the Concept of Judicial Reform, approved on October 24, 1991 by the Supreme Council of the RSFSR. At the same time, it was assumed that justice of the peace would bring the court closer to the population, facilitate citizens' access to justice, speed up the passage of cases, including civil ones, until their final judicial resolution, and also significantly relieve federal courts.

FKZ "On the judicial system of the Russian Federation" and the Federal Law "On justices of the peace in the Russian Federation". This law defines the competence of the justice of the peace. In addition to criminal cases of crimes, for which a maximum penalty not exceeding two years' imprisonment may be imposed, justices of the peace at first instance are called upon to consider cases on the issuance of a court order, as well as other civil cases arising from family and civil legal relations. The Code of the Russian Federation on Administrative Offenses includes some cases of administrative offenses for the administration of a justice of the peace. A civil case is accepted by a justice of the peace for proceedings, taking into account tribal and territorial jurisdiction.

The procedure for consideration and resolution of civil cases referred to the competence of a justice of the peace is subject to the general rules of civil proceedings. The judge considers the case alone.

Jurisdiction between district courts and justices of the peace is distributed based on the category of the case, the nature of the dispute, its subject matter, the amount of property claims, the subject composition of the disputed substantive legal relationship.

The generic jurisdiction of civil cases of justices of the peace is defined in Art. 23 Code of Civil Procedure of the Russian Federation.

1. The justice of the peace considers as a court of first instance:

1) cases on the issuance of a court order; 2) cases of divorce, if there is no dispute between the spouses about children; 3) cases of division of jointly acquired property between spouses at a claim value not exceeding fifty thousand rubles; 4) other cases arising from family legal relations, with the exception of cases of contesting paternity (maternity), establishing paternity, depriving parental rights, restricting parental rights, adoption (adoption) of a child, other cases on disputes about children and cases on recognizing marriage as invalid; 5) cases on property disputes, with the exception of cases on the inheritance of property and cases arising from relations for the creation and use of the results of intellectual activity, with the value of the claim not exceeding fifty thousand rubles; 6) has ceased to be valid. 7) cases on determining the procedure for the use of property.

2. Federal laws may include other cases under the jurisdiction of justices of the peace.

3. When combining several interconnected claims, changing the subject of the claim or filing a counterclaim, if new claims become cognizable to the district court, while others remain cognizable to the justice of the peace, all claims are subject to consideration in the district court. In this case, if the cognizance of the case has changed in the course of its consideration by the justice of the peace, the justice of the peace issues a ruling on the transfer of the case to the district court and transfers the case to the district court for consideration.

4. Disputes between a justice of the peace and a district court about jurisdiction are not allowed.

With regard to territorial jurisdiction, i.e. distribution of cases between courts of one link in the system of courts of general jurisdiction, then for justices of the peace there are no exceptions to the general rules established by Art. 28-33 Code of Civil Procedure of the Russian Federation does not exist.

The magistrate shall carry out his activities within the limits of his court district. Judicial districts, as well as the positions of justices of the peace, are created and abolished by the laws of the constituent entities of the Russian Federation (Article 4 of the Federal Law "On Justices of the Peace in the Russian Federation"). In order to comply with the rules of territorial jurisdiction, the justice of the peace and the persons applying to him with the appropriate statement must clearly understand the territory served by the justice of the peace. Transfer to another judge is carried out by a higher court.

§ 2. The order of consideration and resolution of civil cases by a justice of the peace

When accepting a statement of claim, the justice of the peace must make sure that its requirements for form and content, provided for in Art. 131 Code of Civil Procedure of the Russian Federation.

According to Article 154 of the Code of Civil Procedure 1. Civil cases are considered and resolved (...) by a justice of the peace before the expiration of a month from the date of acceptance of the application for proceedings.

Article 150. Actions of a judge when preparing a case for trial

1. When preparing a case for trial, the judge: 1) explains to the parties their procedural rights and obligations; 2) question the plaintiff or his representative on the merits of the stated claims and propose, if necessary, to submit additional evidence within a certain period of time; 3) interrogates the defendant on the circumstances of the case, finds out what objections there are regarding the claim and what evidence these objections can be confirmed; 4) resolves the issue of co-plaintiffs, co-defendants and third parties joining the case without independent claims regarding the subject of the dispute, and also resolves issues of replacing an improper defendant, joining and separating claims; 5) takes measures to conclude a settlement agreement between the parties, including the results of the okay established by federal law, the mediation procedure, which the parties are entitled to conduct at any stage of the trial, and explains to the parties their right to apply for dispute resolution to an arbitration court and the consequences of such actions; organizations; 7) resolve the issue of calling witnesses; 8) appoint an examination and an expert to conduct it, as well as resolve the issue of involving a specialist, a translator in the process;

9) at the request of the parties, other persons participating in the case, their representatives, demand from organizations or citizens evidence that the parties or their representatives cannot obtain on their own; 10) in cases of urgency, carry out, with notice to the persons participating in the case, an on-site inspection of written and material evidence; 11) send letters of request; 12) take measures to secure the claim; 13) in cases provided for article 152 of this Code, resolves the issue of holding a preliminary court session, its time and place;

14) perform other necessary procedural actions.

2. The judge sends or hands over to the defendant copies of the application and the documents attached to it, substantiating the claim of the plaintiff, and proposes to present evidence in support of his objections within the time period established by him. The judge explains that the defendant's failure to present evidence and objections within the time limit set by the judge does not prevent the consideration of the case based on the evidence available in the case.

3. In case of systematic opposition of a party to the timely preparation of the case for trial, the judge may recover in favor of the other party compensation for the actual loss of time in accordance with the rules established by article 99 of this Code.

Judicial proceedings in civil cases referred to the jurisdiction of a justice of the peace are subject to the general rules of civil proceedings. The only thing that relates to the specifics of the activity of the justice of the peace is that in all cases he considers the case alone (part 3 of article 3 of the Federal Law "On Justices of the Peace in the Russian Federation"), and the time limit for considering the case is set within a month from the day the application is accepted for processing.

Article 121. Court order

1. Court order - a court decision issued by a single judge on the basis of an application for the recovery of sums of money or for the recovery of movable property from the debtor according to the requirements provided for article 122 of this Code.

2. A court order is at the same time an executive document and is enforced in okay established for the enforcement of judgments.

Article 122. Requirements on which a court order is issued

A court order is issued if:

1. the claim is based on a notarized transaction; 2. the claim is based on a transaction made in a simple written form; 3. the claim is based on a notary protest against the bill of non-payment, non-acceptance and undated acceptance; 4. a claim has been made for the recovery of alimony for minor children, not related to establishing paternity, contesting paternity (maternity) or the need to involve other interested parties; 5. a demand was made to recover from citizens arrears in taxes, fees and other obligatory payments;

6. a claim has been made for the recovery of wages accrued but not paid to the employee, vacation pay, dismissal payments and (or) other amounts accrued to the employee;

7. the territorial body of the federal executive body for ensuring the established procedure for the operation of courts and the execution of judicial acts and acts of other bodies has filed a claim for the recovery of expenses incurred in connection with the search for the defendant, or the debtor, or the child; 8. A claim has been made for the recovery of accrued but not paid monetary compensation for violation by the employer of the established deadline, respectively, payment of wages, vacation pay, payments upon dismissal and (or) other payments due to the employee.

Article 123. Filing an application for a court order

1. An application for issuance of a court order is filed with the court in accordance with the general rules of jurisdiction established in this code.

2. An application for issuance of a court order is paid with a state fee of 50 percent rates established for claims.

Article 124. Form and content of an application for issuing a court order

1. An application for issuing a court order shall be submitted in writing.

2. The following must be indicated in the application for issuing a court order:

1) the name of the court to which the application is submitted; 2) the name of the recoverer, his place of residence or location; 3) the name of the debtor, his place of residence or location, and for a citizen-debtor also the date and place of birth, place of work (if they are known); 4) claim of the recoverer and the circumstances on which it is based; 5) documents confirming the validity of the claim of the recoverer; 6) list of attached documents.

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

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

Article 126. Procedure for issuing a court order

1. A court order on the merits of the stated claim shall be issued within five days from the date of receipt of the application for issuing a court order to the court.

2. A court order is issued without a trial and without summoning the parties to hear their explanations.

Article 127. Content of a court order

1. The following shall be indicated in the court order: 1) the number of proceedings and the date of issuance of the order; 2) the name of the court, the surname and initials of the judge who issued the order; 3) name, place of residence or location of the claimant; 4) the name, place of residence or location of the debtor, and for a citizen-debtor also the date and place of birth, place of work (if they are known); 5) the law on the basis of which the claim is satisfied; 6) the amount of money to be collected, or the designation of movable property to be reclaimed, indicating its value; 7) the amount of the penalty, if its collection is provided for by the federal law or agreement, as well as the amount of penalties, if any; 8) the amount of state duty to be collected from the debtor in favor of the recoverer or to the income of the relevant budget; 10) the period for which the recoverable debt on obligations was formed, providing for the execution in installments or in the form of periodic payments.

2. In a court order for the recovery of alimony for minor children, in addition to the information provided for paragraphs 1 - 5 parts one of this article, the date and place of birth of the debtor, his place of work, the name and date of birth of each child for the maintenance of which alimony is awarded, the amount of payments collected monthly from the debtor, and the period for their collection are indicated.

3. The court order is drawn up on a special form in two copies, which are signed by the judge. One copy of the court order remains in court proceedings. A copy of the court order is made for the debtor. Article 128. The judge sends a copy of the court order to the debtor, who, within ten days from the date of receipt of the order, has the right to file objections regarding its execution. Article 129. Cancellation of the court order The judge cancels the court order if objections regarding its execution are received from the debtor within the prescribed period. In the ruling on the cancellation of the court order, the judge explains to the exactor that the stated requirement can be presented to them in the course of action proceedings. Copies of the court ruling on the cancellation of the court order shall be sent to the parties no later than three days after the date of its issuance. Article 130. Issuance of a court order to a recoverer 1. In the event that no objections are received from the debtor within the established period, the judge shall issue to the recoverer a second copy of the court order, certified by the official seal of the court, for presenting it for execution. At the request of the claimant, the court order may be sent by the court for execution to the bailiff. 2. In case of collection of the state fee from the debtor to the income of the relevant budget, on the basis of a court order, a writ of execution is issued, which is certified by the official seal of the court and sent by the court for execution in this part to the bailiff.

The objectives of civil proceedings are the correct and timely consideration and resolution of civil cases in order to protect violated or disputed rights, freedoms and legitimate interests of citizens, organizations, rights and interests of the Russian Federation, constituent entities of the Russian Federation, municipalities, other persons who are subjects of civil, labor or other legal relations. The interested person has the right, in accordance with the procedure established by the legislation on civil proceedings, to apply to the court for the protection of violated or disputed rights, freedoms or legitimate interests.

The right to appeal to the court is granted, as a general rule, to a person whose rights, freedoms and legitimate interests have been violated. Civil procedural legal capacity is equally recognized for all citizens and organizations that, in accordance with the legislation of the Russian Federation, have the right to judicial protection of rights, freedoms and legitimate interests (Article 36 of the Code of Civil Procedure of the Russian Federation). The rights and legitimate interests of minors are called upon to protect legal representatives - parents, adoptive parents, guardians and trustees or other persons to whom this right is granted by federal law.

Proceedings in civil cases involving minors are carried out in accordance with the general procedure established by the Code of Civil Procedure of the Russian Federation, taking into account the features set forth in Art. 37 "Civil procedural capacity" Code of Civil Procedure of the Russian Federation. In accordance with this article, civil procedural capacity is considered the ability of citizens who have reached the age of 18 years, and organizations, by their actions, to exercise procedural rights, fulfill procedural obligations and entrust the conduct of a case in court to a representative.

The most important elements in the exercise of civil legal capacity are the moment of emergence of civil legal capacity and the consequences in its absence. Article 37 of the Code of Civil Procedure of the Russian Federation distinguishes four categories of citizens depending on their age and state of health, and this division has its own reasons. Minors as a special class of citizens belong to each of the selected categories.

Thus, the first category of the Code of Civil Procedure of the Russian Federation (part 1 of article 37) includes citizens who have reached the age of 18 and already by virtue of this have acquired full procedural capacity. However, the legislator also includes minors under the age of 18 in this category, while stipulating in Part 2 of Art. 37 of the Code of Civil Procedure of the Russian Federation, that they acquire this right from the time they enter into marriage or declare them fully capable (emancipated).

The second category of citizens is formed by minors aged 14 to 18 years, as well as adult citizens who are limited in legal capacity in the manner prescribed by law. In accordance with Part 3 of Art. 37 Code of Civil Procedure of the Russian Federation, the rights and legitimate interests of this category of citizens are protected in court by their legal representatives in the person of parents, adoptive parents, trustees. However, participation in the process of minors themselves or citizens recognized as having limited legal capacity is mandatory.

The legislator refers to the third category minor citizens aged 14 to 18 years, who in certain cases, by virtue of a direct indication of this law, have full civil procedural capacity. The specifics of the rules of Part 4 of Art. 37 of the Code of Civil Procedure of the Russian Federation is that these rules apply only in cases where the court considers cases that follow:

1) from labor relations. For example, cases of refusal to hire (Article 63 of the Labor Code of the Russian Federation allows employment from the age of 14), cases related to the payment of their labor (Article 271 of the Labor Code of the Russian Federation), with illegal involvement of minors in overtime, hard work . In all cases, underage workers have the right to personally defend their rights in court;

2) from civil and family legal relations. From the general rule on the judicial protection of the rights and interests of citizens aged 14 to 18 by their legal representatives, the RF IC provides for three exceptions. According to paragraph 2 of Art. 56, art. 62 and 142 of the RF IC, citizens who have reached the age of 14 have the right to independent judicial protection of their rights and legitimate interests. Thus, family and civil legislation contains an indication of the possibility of filing a lawsuit (statement, complaint) independently upon a minor reaching the age of 14 years in case of violation of his rights and legitimate interests, including in case of failure or improper fulfillment by parents (one of them) of duties on upbringing, education or in case of abuse of parental rights (Article 56 of the RF IC), as well as with a claim for the annulment of adoption (Article 142) and with a requirement to be declared emancipated (Article 27 of the RF CC). One of the features of the consideration of cases related to adoption, change of name, surname, patronymic, restoration of parental rights (Articles 5, 59, 72, 132, 134, 136, 143, 154 of the RF IC), is that the court only with the consent of a child who has reached the age of 10;

3) from cooperative legal relations. System analysis Art. 37 Code of Civil Procedure of the Russian Federation, art. 26 of the Civil Code of the Russian Federation, art. 7 of the Federal Law "On Production Cooperatives" allows us to conclude that in cases involving the membership of a minor in cooperatives (membership from the age of 16 is allowed), he has the right to personally defend his rights and legitimate interests in court.

The next feature of the rules of Part 4 of Art. 37 of the Code of Civil Procedure of the Russian Federation consists in the fact that they give the court the right to decide on its own whether to involve parents (adoptive parents), trustees, other legal representatives of minors in the case (i.e., these rules are dispositive, in contrast to the rules of part 3 of article 37 Code of Civil Procedure of the Russian Federation). Similarly, the issue is resolved in cases where the court considers disputes related to transactions for the disposal of minors of their earnings received under an employment contract, income of a member of a production cooperative or from entrepreneurial activity, as well as income (in the form of interest, discount, etc.), which can be received by minors with bank deposits, shares, etc.

The fourth category of citizens includes minors under the age of 14 years. This category of persons, as well as citizens recognized as legally incompetent, do not have civil procedural capacity, that is, the right to independently protect their rights and interests. In accordance with Part 5 of Art. 37 of the Code of Civil Procedure of the Russian Federation, the rights and legitimate interests of these persons are protected in court by their legal representatives - parents, adoptive parents, guardians, trustees or other persons to whom this right is granted by federal law.

Thus, a minor can become a participant in a civil process - while he either takes an independent part as one of the parties (plaintiff, defendant or applicant), or acts as a participant in the trial when protecting his rights, freedoms and interests by legal representatives.

Separately, it should be pointed out the possibility of participation of a minor in civil proceedings as a third party, however, such participation is allowed if the minor has full civil procedural capacity. In this case, we are also talking about the independent participation of a minor in civil proceedings. Based on Part 1 of Art. 69 of the Code of Civil Procedure of the Russian Federation, which states that any person who knows any circumstances related to the case can be a witness, a minor in civil proceedings can act as a witness.

Minor as a participant in civil proceedings

As it was established earlier, a minor as a participant in civil proceedings can act independently as one of the parties (plaintiff, defendant or applicant), be a participant in the trial when protecting his rights, freedoms and interests by legal representatives or act as a witness or a third party.

Considering the participation of a minor in a civil process as an independent person, it should be noted that he has all procedural rights, enshrined in Art. 35 Code of Civil Procedure of the Russian Federation, namely such rights as:

get acquainted with the materials of the case, make extracts from them and make copies. Actual familiarization with the case materials can take place both during the trial and outside it;
make withdrawals. It should be noted that in accordance with Art. 54 Code of Civil Procedure of the Russian Federation, representatives have the same right;
provide evidence and participate in their research;
ask questions to other persons participating in the case, witnesses, experts and specialists;
to make petitions, which allows the person participating in the case to bring his procedural requirements to the court in the established procedural form. Petitions made outside the trial must also be considered by the court in the manner prescribed by the procedural legislation;
give explanations to the court orally and in writing;
present their arguments on all issues arising during the trial, object to the petitions and arguments of other persons participating in the case;
appeal court decisions;
use other procedural rights provided by law in civil proceedings.

Speaking about procedural obligations, attention should be paid to their heterogeneous nature, for example, if a person participating in a civil process cites various circumstances as the basis for his claims and objections, then he is obliged to provide evidence of the existence of these circumstances.

The court is obliged to fully assist the parties involved in the civil process in the exercise of their rights, to facilitate their implementation, to explain to the parties the consequences of the commission or non-commission of certain procedural actions. This duty of the court is specified in Art. 20 of the Resolution of the Plenum of the Supreme Court of the Russian Federation of June 24, 2008 No. 11 "On the preparation of civil cases for trial."

As noted above, paragraph 4 of Art. 37 of the Code of Civil Procedure of the Russian Federation provides for the right of minors aged 14 to 18 to independently defend their interests in cases provided for by federal law in cases arising from civil, family, labor, public and other legal relations. However, the legislator provides for the court the right to involve legal representatives of a minor in such cases. It is also necessary to note paragraph 19 of the resolution of the Plenum of the Supreme Court of the Russian Federation “On the preparation of civil cases for trial”, which states that the judge should discuss the need to involve legal representatives of a minor in the case.

In this regard, the question arises about the procedural and legal significance of the actions performed in such cases by legal representatives, as well as about the actions of the court in the event of contradictions in the procedural actions of a minor and his legal representative. Is not it. Nosenko notes: “Since, in the norm, paragraph 4 of Art. 37 of the Code of Civil Procedure of the Russian Federation does not clearly indicate the procedural position of the participants, we do not find an answer to the question of who in this case is a party to the lawsuit: the minor himself or his legal representative. After analyzing the law, it seems possible to conclude that it is minors that should be recognized as a party to the process. Legal representatives, on the other hand, may give consent to one or another civil procedural statement or action. Moreover, with the help of the phrase “the court has the right to attract ...”, the legislator managed to emphasize the optional presence of parents (persons replacing them) in the administration of justice in civil cases.

Thus, the participation of a minor in civil proceedings on the grounds of Part 4 of Art. 37 of the Code of Civil Procedure of the Russian Federation differs little from the participation in the process of an "ordinary" capable citizen. The priority in the trial is the will of the minor, however, if contradictions are found in the civil procedural statement or actions of the minor and his legal representative, the court is obliged to evaluate the explanations given by them in conjunction with other evidence in the case.

The participation of minors in civil proceedings is most common, when their rights, freedoms and legitimate interests are protected in court by their legal representatives - parents, adoptive parents, guardians, trustees or other persons to whom this right is granted by federal law. The interests of a minor under the age of 14 years in court are represented by parents, adoptive parents and guardians, while if a minor is from 14 to 18 years old, then his interests in court are represented by parents, adoptive parents and guardians.

The procedural position of legal representatives is defined by such an institution of civil procedural law as representation, enshrined in Ch. 5 Code of Civil Procedure of the Russian Federation. Legal representatives act in the process on behalf of the minor and in his interests, creating rights and obligations for him (Article 52 of the Code of Civil Procedure of the Russian Federation). However, given the special status of a minor, the legislator establishes certain restrictions on the actions of a legal representative (clause 3, article 52 of the Code of Civil Procedure of the Russian Federation). Such restrictions include the requirements of Art. 37 "Disposal of the property of the ward" of the Civil Code of the Russian Federation. Based on this, the court is not entitled to accept the refusal of the legal representative from the claim or the recognition by him of a claim in a property dispute, the party of which is a minor who is under guardianship or guardianship, if there is no consent of the guardianship and guardianship body in the case under consideration by the court.

Legal representatives may entrust the conduct of business to another person chosen by them as a representative. In such a case, contractual representation will take place. The scope of powers transferred to the representative is determined by the legal representative. He can give the representative both general and special powers specified in Art. 54 Code of Civil Procedure of the Russian Federation.

The law also establishes the rights of other persons who may represent the interests of a minor. Such persons include the administration of the orphanage, guardianship and guardianship authorities, if there is a need for the participation of a legal representative before the appointment of a guardian or trustee. According to i. 2 tbsp. 123 of the RF IC, prior to the placement of children left without parental care for upbringing in a family or in an appropriate institution, the duties of a guardian or trustee are assigned to the guardianship and guardianship authorities. Children who are permanently in full state care in educational, medical institutions, institutions of social protection of the population and other similar institutions, guardians (trustees) are not appointed. In these cases, in accordance with paragraph 1 of Art. 147 of the RF IC, the fulfillment of their duties is entrusted to the administration of these institutions.

Before starting trial in cases affecting the interests of minors represented by legal representatives, the judge, in the course of preparing for the court session, checks the age of the minor, as well as the powers of their legal representatives or other persons to whom this right is granted by federal law.

Features of the participation of a minor in cases considered by the court in the order of special proceedings

The purpose of special proceedings is not to resolve the existing substantive dispute between the parties, but to establish the legal status of a citizen, property, facts of legal significance, and so on. Civil procedural legislation does not exclude the participation of a minor in cases considered by the court in the order of special proceedings. In paragraphs 4 and 5 of Art. 262 of the Code of Civil Procedure of the Russian Federation stipulates a list of cases in relation to minors, which are considered in the order of special proceedings - these are cases of restricting or depriving a minor aged 14 to 18 of the right to independently dispose of his income and cases related to declaring a minor fully capable (emancipated).

By virtue of paragraph 4 of Art. 26 of the Civil Code of the Russian Federation, if there are sufficient grounds, the court, at the request of parents, adoptive parents or a guardian or a guardianship and guardianship authority, may restrict or deprive a minor aged 14 to 18 of the right to independently manage his earnings, scholarships or other income. The court initiates such cases on the basis of an application from parents, adoptive parents or a trustee or a guardianship and guardianship authority (Article 282 of the Code of Civil Procedure of the Russian Federation). The application must set out the circumstances evidencing:

on the presence of a minor's earnings, scholarships or other income;
the age of the minor;
facts of unreasonable disposal of a minor with his earnings, scholarships or other income.

These facts must be confirmed by testimonies, copies of contracts and other evidence of the unreasonable use by minors of their income (gambling, the use of alcoholic beverages and drugs, etc.). The application does not need to indicate the purpose of restricting or depriving a minor aged 14 to 18 of the right to independently manage his earnings, scholarships or other income, since in this case the purpose has no legal significance.

Cases of this category do not provide for cases where a minor has acquired legal capacity in full in accordance with Art. 2 tbsp. 21 (marriage of a citizen under the age of 18) or Art. 27 of the Civil Code of the Russian Federation (declaration of a minor who has reached the age of 16, working under an employment contract, contract or with the consent of parents, adoptive parents or a guardian engaged in entrepreneurial activities, fully capable - emancipation).

The essence of emancipation (Article 27 of the Civil Code of the Russian Federation) is that a minor who has reached the age of 16 can be declared fully capable if he works under an employment contract (contract) or, with the consent of his parents, adoptive parents or guardian, is engaged in entrepreneurial activity. According to Art. 287 of the Code of Civil Procedure of the Russian Federation, a minor who has reached the age of 16 may apply to the court at the place of his residence with an application to declare him fully capable. Interested parties may be parents, adoptive parents, guardian, who do not give consent to the emancipation of a minor, since the decision on the case affects their rights and obligations in relation to him. The application is considered by the court with their participation, as well as with the participation of a representative of the guardianship and guardianship body, the prosecutor.

When making a decision on emancipation, the court must be guided by both subjective (personal, intellectual) and objective (property) criteria. The court must make sure that the mental development of the minor, the level of life experience allow him to participate in civil legal relations without resorting to the help of parents.

Based on the results of consideration of the application on the merits, the court decides to declare the minor fully capable (emancipated) or rejects the applicant's request. Emancipation is declared from the date of entry into force of the court decision on emancipation.

Features of the participation of a minor in civil proceedings as a witness

The law does not exclude minors from the number of persons who may be summoned and interrogated as witnesses. This obligation is enshrined in Art. 69 Code of Civil Procedure of the Russian Federation. However, in practice, minors are called to testify in a case only when absolutely necessary. When interrogating juvenile witnesses and evaluating their testimony, the court in each specific case must take into account their age and ability to correctly perceive facts and events that are relevant to the case, and give evidence about them that corresponds to reality.

The interrogation of a witness under the age of 14, and at the discretion of the court - and at the age of 14 to 16 years is carried out with the participation of a pedagogical worker who is summoned to court (Article 179 of the Code of Civil Procedure of the Russian Federation). The law in this case does not distinguish between a teacher and a legal representative of a minor. However, it should be borne in mind that a teacher participating in the process of interrogating a minor occupies the procedural position of a specialist, to whom Art. 188 Code of Civil Procedure of the Russian Federation. If necessary, the parents, adoptive parents, guardian or trustee of a minor witness are also called. These persons may, with the permission of the presiding judge, put questions to the witness, as well as express their opinion regarding the identity of the witness and the content of his testimony. In exceptional cases, if it is necessary to establish the circumstances of the case, during the interrogation of a minor witness, one or another person participating in the case may be removed from the courtroom on the basis of a court ruling, or any of the citizens present in the courtroom may be removed court session. The person participating in the case, after returning to this hall, must be informed of the content of the testimony of a minor witness and must be given the opportunity to ask the witness questions. A witness who has not reached the age of 16, upon completion of his interrogation, is removed from the courtroom, except in cases where the court recognizes the presence of this witness in the courtroom as necessary.

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Appeal

in a civil case against a court decision

On April 20, 2011, the Sovetsky District Court ruled in a civil case on the claim of N.S. Svetlakova. to Ivanov A.N. about the ownership of part of the house. The court ruled in favor of the ownership of part of the residential building, substantiating it, in particular, with an expert opinion.

The committed violations significantly influenced the court decision in the case, without the elimination of the committed violations, it is impossible to restore and protect the violated rights, freedoms and legitimate interests.

Based on the foregoing, guided by Articles 376, 387, 390 of the Civil Procedure Code of the Russian Federation,

I beg:

1. To cancel the decision of the Soviet District Court of April 20, 2011 in a civil case on the claim of Svetlakova N.S. to Ivanov A.N. about the ownership of part of the house.

2. Issue a new ruling in this case without taking into account the expert's opinion.

List of documents attached to the complaint(copies according to the number of persons participating in the case):

1. Copy of the cassation appeal

2. Document confirming the payment of the state fee

3. A copy of the judgment of the Soviet District Court dated April 20, 2011, certified by the court

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