Proof and evidence in civil proceedings. The concept and definition of the subject of proof in a specific case. Facts not subject to proof What determines the subject of proof in a dispute

Eronina M.A.

The subject of proof is one of the most difficult problems not only in the theory of proof, but also in the practice of considering tax disputes. This article formulates the concept of the subject of proof in cases arising from tax legal relations. Also, a range of circumstances that are directly related to the subject of proof in cases arising from tax legal relations has been determined. If we follow the algorithm proposed in the article for including the circumstances to be proven, then the correct definition of the subject of proof is quite possible, which is confirmed by judicial practice.

"Proof for each category of cases is purely specific and has its own subject of proof, especially in the distribution of the obligation of proof and admissibility of evidence"<1>.

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<1>Reshetnikova I.V. Evidence course in Russian civil proceedings... M .: Norma, 2000.S. 18.

When considering cases arising from tax legal relations (or tax disputes), the court is obliged to take measures to establish the actual circumstances of the case.

The subject of proof is one of the most difficult problems not only in the theory of proof, but also in the practice of considering tax disputes. "To correctly determine the subject of proof in a civil case means to give the whole process of collecting, researching and evaluating evidence in the right direction."<2>.

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<2>Civil process: Textbook / E.A. Borisova, S.A. Ivanova, E.V. Kudryavtseva and others; ed. M.K. Treushnikov. 2nd ed., Rev. and add. Moscow: Gorodets Publishing House, 2008. P. 275.

In this article, we will try to formulate the concept of the subject of proof in cases arising from tax legal relations, we will determine the range of circumstances included in the subject of proof and subject to proof.

What is the subject of proof?

It should be noted that neither the Arbitration Procedure Code of the Russian Federation<3>(hereinafter referred to as the APC RF), nor the Civil Procedure Code of the Russian Federation<4>(hereinafter - the Code of Civil Procedure of the Russian Federation), nor the Tax Code of the Russian Federation<5>(hereinafter - the Tax Code of the Russian Federation) do not contain a definition of the subject of proof, therefore, one has to be guided by the opinions of scientists.

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<3>The Arbitration Procedure Code of the Russian Federation of July 24, 2002 N 95-FZ (as amended on June 28, 2014) // Russian newspaper... 2002. N 137.27 July.
<4>Civil Procedure Code of the Russian Federation of November 14, 2002 N 138-FZ (as amended on July 21, 2014) (as amended and supplemented, entered into force on 08/06/2014) // Rossiyskaya Gazeta. 2002. N 220.20 November.
<5>Tax Code of the Russian Federation (part one) of July 31, 1998 N 146-FZ (as amended on June 28, 2014) // Rossiyskaya Gazeta. 1998. N 148-149.August 06.

In the scientific and educational literature, opinions on this issue are ambiguous.

I.V. Reshetnikova believes that the subject of proof is the totality of legal facts in the case<6>.

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<6>Reshetnikova I.V. Decree. Op. P. 133.

R.O. Opalev believes that the subject of proof in the arbitration process can be understood as a set of circumstances that must be established to resolve the case in court<7>.

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<7>

S.V. Kurylev believed that only facts relevant to the case were the subject of proof, and these facts were determined on the basis of the applicable substantive law. At the same time, the author noted that the requirements and objections of the parties were not decisive.<8>.

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<8>Kurylev S.V. Foundations of the theory of proof in Soviet justice. Minsk: Publishing house of the Belarusian state. un-ta them. IN AND. Lenin, 1969.S. 38 - 39.

M.K. Treushnikov points out that the subject of proof is the totality of circumstances (legal facts) of the basis of the claim and objections to it, which are indicated by the norm of substantive law to be applied<9>.

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<9>Treushnikov M.K. Forensic evidence. M .: JSC "Publishing House" Gorodets ", 2004. S. 15.

V.V. Yarkov believes that the subject of proof is a set of legal facts that must be established by indirect knowledge, in other words, to prove to the subjects of evidence<10>.

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<10>V.V. Yarkov Cognition and proving of procedural legal facts (certain issues) // Lawyer. 2013. N 19.P. 54.

According to T.V. Sakhnova, the subject of proof is formed by facts of a material-legal nature, subject to proof, substantiating the requirements and objections of the parties, which are indicated by the norm of substantive law, presumably applicable in the case, as well as the facts of procedural recusal (constituting the basis of the defendant's procedural objections aimed at ending the process without judgment on the merits of the case)<11>.

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<11>T.V. Sakhnova Civil Procedure Course: Theoretical Principles and Basic Institutions. M .: Walters Kluver, 2008.S. 382.

The most accurate definition of the subject of proof by O.I. Dolgopolov, who believes that the subject of proof can be defined as a set of legally significant and evidentiary facts (substantive, procedural, procedural), as well as other circumstances that determine the actual legal relationship of the parties, substantiating the claims and objections of each of them, subject to reliable establishment for correct tax dispute resolution<12>.

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<12>Dolgopolov O.I. Evidence and proof in tax disputes. Moscow: Tax Bulletin, 2011.

As for the cases arising from tax legal relations, it is more correct to say that their subject of proof is a set of specific facts, substantive and procedural, concerning the claims and objections of the persons participating in the case and constituting in their unity the proof of those circumstances that are necessary for the correct resolution of the case.

It should be remembered that the subject of proof in cases arising from tax legal relations is precisely the specific facts that are necessary for the correct resolution of the case.

For example, the subject of evidence in tax disputes on the collection of compulsory payments and sanctions is a combination of facts: the grounds for collection, compliance with the procedure and deadlines for going to court, the legality of debt collection, which includes the establishment of the circumstances of the occurrence and amount of arrears (Resolution of the Federal Arbitration Court Vostochno- Siberian District of 02.21.2013 in case N A33-6863 / 2012<13>).

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<13>Resolution of the Federal Arbitration Court of the East Siberian District of 02/21/2013 on case No. A33-6863 / 2012 // ATP ConsultantPlus, 2014.

The subject of evidence in cases of invalidation of decisions of the tax authority to refuse to return from the budget amounts of overpaid (collected) tax is a set of facts: the presence (absence) of excessive tax payments; the presence (absence) of arrears on other taxes of the corresponding type or arrears on the corresponding penalties, fines, as well as compliance with the deadline for applying to the tax authority with an application for a tax refund.

Determination of the subject of proof in cases arising from tax legal relations is a key issue, since it is "directly related to the task of presenting evidence in the case"<14>.

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<14>Bekov Ya.Kh. Preparation of a case for trial in civil proceedings: Monograph. M .: Walters Kluver, 2010.

In the practice of courts, there are often cases when an erroneous determination of the subject of evidence in cases arising from tax legal relations serves as a basis for canceling a judicial act in a higher instance. This can be traced in the Resolution of the Federal Arbitration Court of the North Caucasus District of 15.07.2008 N F08-3996 / 2008 in case N A32-24476 / 2006-51 / 429<15>, where the courts of first and appeal did not take into account that the circumstances of this case are not similar to the actual circumstances of the case N A32-16721 / 2006-48 / 419<16>, since in case N А32-24476 / 2006-51 / 429 tax payments were collected, and in case N А32-16721 / 2006-48 / 419 the decision of the tax authority was checked, in connection with which the subject of proof in these cases was different.

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<15>Resolution of the Federal Arbitration Court of the North Caucasus District of 15.07.2008 N F08-3996 / 2008 in case N A32-24476 / 2006-51 / 429 // ATP ConsultantPlus, 2014.
<16>Resolution of the Federal Arbitration Court of the North Caucasus District of June 21, 2007 N F08-3642 / 2007-1482A in case N A32-16721 / 2006-48 / 419 // ATP ConsultantPlus, 2014.

According to Part 1 of Art. 64 of the Arbitration Procedure Code of the Russian Federation, Part 1 of Art. 55 of the Code of Civil Procedure of the Russian Federation, evidence in the case is the information received about the facts, on the basis of which the arbitration court establishes the presence or absence of circumstances justifying the claims and objections of the persons participating in the case, as well as other circumstances that are important for the correct consideration of the case.

In accordance with paragraph 1 of Art. 270 of the Arbitration Procedure Code of the Russian Federation as a basis for changing or canceling the decision of the arbitration court is an incomplete clarification of the circumstances that are relevant to the case.

Consequently, it is the court that must establish the circumstances that are directly related to the case.

What circumstances are directly related to the subject of proof in cases arising from tax legal relations? Let's summarize.

First, the grounds for the stated claim.

In particular, the court must find out whether there was a fact of non-payment of tax or its overpayment, whether the person was a payer for a specific tax, whether there was a fact of non-compliance with the law of a non-normative act adopted by the tax authority or the fact of violation of the taxpayer's rights by a non-normative act of the tax authority.

Secondly, these are the circumstances testifying to the compliance by the tax authority and the taxpayer with the norms of substantive law, in this case, the norms of tax legislation. The study and analysis of these norms is necessary for the correct determination of the subject of proof, since they regulate controversial tax relations.

In particular, paragraph 3 of Art. 46 of the Tax Code of the Russian Federation indicates that the tax authority can apply to the court to recover the tax due from the taxpayer if it missed the two-month deadline for making a decision on collection. The application by the tax authority must be filed with the court within six months after the expiry of the deadline for the fulfillment of the tax claim. If the tax authority misses the deadline for filing an application with the court and fails to submit an application for the restoration of the deadline for a good reason, the tax authority's application will be dismissed by the court (Resolution of the Federal Arbitration Court of the Volga District of July 16, 2013 on case No. A12-26440 / 2012<17>).

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<17>Resolution of the Federal Arbitration Court of the Volga District of July 16, 2013 in case No. A12-26440 / 2012 // ATP ConsultantPlus, 2014.

Or, for example, paragraph 2 of Art. 138 of the Tax Code of the Russian Federation says that acts of tax authorities of a non-normative nature, actions or inaction of their officials can be appealed in court only after they are appealed to a higher tax authority.

Thus, when considering cases arising from tax relations, the court is obliged to establish the facts that will be the basis for the application of certain norms of substantive law.

Thirdly, the circumstances testifying to the observance of the norms of procedural law (including the right to go to court, verification of the powers of the tax authority, verification of the circumstances specified in the objections of the persons participating in the case).

In particular, in paragraph 2 of Art. 213 of the Arbitration Procedure Code of the Russian Federation states that an application for recovery is filed with an arbitration court if the applicant's request to pay the amount to be recovered on a voluntary basis has not been fulfilled.

Compliance with procedural rules is a prerequisite for filing an application with the court.

In addition, procedural rules cannot exist separately from substantive rules.

For example, by virtue of Part 1 of Art. 4 of the Arbitration Procedure Code of the Russian Federation, a taxpayer can apply to the court only in case of violation of his right to a timely offset or refund of overpaid taxes, penalties, fines, that is, when the proper observance of the regulated art. 78 of the Tax Code of the Russian Federation, the procedure did not ensure the implementation of this right in an administrative (extrajudicial) manner due to non-fulfillment or improper fulfillment by the tax authority of the duties assigned to it by law. A taxpayer's appeal to the court with a claim for the return or offset of overpaid amounts of taxes, penalties, fines is possible only if the tax authority refuses to satisfy the said application or the taxpayer does not receive a response within the time period established by law<18>.

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<18>Resolution of the Plenum of the Supreme Arbitration Court of the Russian Federation of July 30, 2013 N 57 "On some issues arising from the application by arbitration courts of part one of the Tax Code of the Russian Federation" // ATP ConsultantPlus, 2014.

The position of N.L. Bartunayeva, who believes that "in addition to the main substantive, evidentiary, procedural facts, the subject of proof in tax disputes also includes procedural facts of proceedings in a tax offense case ... and other legally significant facts"<19>.

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<19>

Consequently, fourthly, the subject of proof includes circumstances that testify to the guilt of the person and confirm that the offense occurred as a result of the culpable illegal actions of the taxpayer (tax authority).

In accordance with paragraph 6 of Art. 108 of the Tax Code of the Russian Federation, a person is considered innocent of committing a tax offense until his guilt is proven in the manner prescribed by federal law.

For example, in the Resolution of the Seventh Arbitration Court of Appeal dated July 21, 2014 in case No. A27-214 / 2014<20>the appellate court upheld the decision of the first instance court unchanged due to the lack of proof by the tax authority of the fact that the applicant's actions were guilty of the offense.

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<20>Resolution of the Seventh Arbitration Court of Appeal dated July 21, 2014 in case No. A27-214 / 2014 // ATP ConsultantPlus, 2014.

Fifth, the subject of proof in cases arising from tax legal relations includes circumstances that aggravate and mitigate the offense (for example, the difficult financial situation of the taxpayer, recognition of an offense, increased risk, disproportionate amount of the fine to the consequences of a tax offense), which can be traced in the Decree of the Federal of the Arbitration Court of the Ural District of 07.19.2013 N F09-5941 / 13 in case N A76-17820 / 2012<21>.

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<21>Resolution of the Federal Arbitration Court of the Ural District of 07.19.2013 N F09-5941 / 13 in case N A76-17820 / 2012 // ATP ConsultantPlus, 2014.

Thus, the court, when considering cases arising from tax legal relations, must establish: the circumstances - the grounds for the stated claim (for example, the grounds for collecting the amount of debt); circumstances of a procedural and material nature (including verification of the powers of the tax authority to apply to the court with an application for collection; compliance by the tax authority with the requirements established by the Tax Code of the Russian Federation, verification of the circumstances specified in the objections of the persons involved in the case); other facts directly related to the case.

In addition, before the start of the court session or within the time period established by the court, the court has the right to indicate additional circumstances that are significant in the case, in particular, to indicate to the applicant the need to clarify the stated requirements.

As practice shows, when determining the subject of proof, the court should not go beyond the facts established as a result of a tax audit. In particular, in the Resolution of the Twelfth Arbitration Court of Appeal dated 03.12.2013 in case No. A06-1971 / 2013<22>it is indicated that the court should not fill in the gaps in the decision of the tax authority, including in the event of failure to reflect or incomplete reflection of the circumstances of the tax offense, the absence of references to the relevant evidence.

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<22>Resolution of the Twelfth Arbitration Court of Appeal dated 03.12.2013 on case No. А06-1971 / 2013 // ATP ConsultantPlus, 2014.

Summing up, we can say that determining the subject of proof in cases arising from tax legal relations is not an easy task.

However, if you follow the proposed algorithm for including the circumstances to be proven, the correct definition of the subject of proof is quite possible, which is confirmed by judicial practice. It is only necessary to remember that in every tax dispute there is a circle of circumstances specific to it, requiring mandatory establishment for the correct resolution of the case.

Literature

1. Bartunaeva N.L. Subject of evidence in tax disputes related to the involvement of subjects economic activity to responsibility: Author's abstract of the dissertation for the degree of candidate of legal sciences. Specialty: 12.00.15 - Civil Procedure; Arbitration process / Scientific. hands. YES. Fursov. M., 2007.
2. Bekov Ya.Kh. Preparation of a case for trial in civil proceedings: Monograph. M .: Walters Kluver, 2010.167 p.
3. Dolgopolov O.I. Evidence and proof in tax disputes. Moscow: Tax Bulletin, 2011.288 p.

1. Civil process: Textbook / E.A. Borisova, S.A. Ivanova, E.V. Kudryavtseva and others; ed. M.K. Treushnikov. 2nd ed., Rev. and add. M .: Publishing house "Gorodets", 2008. 784 p.
2. Kurylev S.V. Foundations of the theory of proof in Soviet justice. Minsk: Publishing house of the Belarusian state. un-ta them. IN AND. Lenin, 1969.204 p.
3. Opalev R.O. The main provisions of the doctrine of proof in the Russian arbitration process // Russian justice. 2013. N 4.
4. Reshetnikova I.V. Evidence course in Russian civil proceedings. M .: Norma, 2000.288 p.
5. T.V. Sakhnova Civil Procedure Course: Theoretical Principles and Basic Institutions. M .: Walters Kluver, 2008.696 p.
6. Treushnikov M.K. Forensic evidence. M .: JSC "Publishing House" Gorodets ", 2004. 272 ​​p.
7. V.V. Yarkov Cognition and proving of procedural legal facts (certain issues) // Lawyer. 2013. N 19.P. 54 - 62.

Key words: subject of proof, tax disputes, tax authority, taxpayer, court practice.

(« Tax«(Magazine), 2015, N 1)

Subject of proof

The subject of proof, according to the traditionally established point of view, is only legal facts - the grounds of the claim and objections to it, which are indicated by the norm of substantive law to be applied. The facts that are the object of knowledge of the court can be divided into four types:

1. Legal facts of a substantive nature. These are facts, with the presence or absence of which, the law connects the possibility of the emergence, change or termination of substantive relations between their subjects. Without their establishment, it is impossible correct application material norms and resolution of the case on the merits.

2. Evidence-based facts. They are sometimes called inference evidence. This means that forensic evidence is necessarily used to establish the latter. So, in cases of recognizing the record of paternity, the invalid plaintiff may refer to the evidentiary fact of his long absence from the defendant's place of residence, in connection with which the conclusion of paternity is excluded.

3. Facts of exclusively procedural significance. These facts are only relevant for the performance of legal proceedings. Associated with them is the emergence of the right to file a claim (fulfillment of a mandatory pre-trial procedure for resolving a dispute), the right to suspend and terminate proceedings on a case, as well as the right to perform other procedural actions.

4. The facts, the establishment of which is necessary for the court to fulfill the educational and preventive tasks of justice. Establishment of this type of facts is required for the court to substantiate a particular determination, i.e. taking preventive measures. So, in the event of a violation of laws and other normative legal acts in the activities of an organization, a state body, a local self-government body and another body, an official or a citizen, the court has the right to issue a private ruling.

The last three groups of facts are defined in the law as "other circumstances that are important for the correct resolution of the case." The facts of any of the listed groups, before the court accepts them as existing, must be proved with the help of forensic evidence.

The term "limits of proof" is used to designate the entire set of facts to be proven.

The subject of proof in a civil case of a claim nature has two sources of formation:

the basis of the claim and the objection to the claim;

hypothesis and disposition of the substantive law to be applied.

At the initial stages of proof, the norm or norms of substantive law are determined on the basis of the assertions of the parties. This, in particular, was indicated by the Plenum of the Supreme Court of the Russian Federation "On the preparation of civil cases for trial". It says that one of the tasks of preparing cases for trial is to clarify the claims, the circumstances justifying them, and the objections of the parties, as well as other circumstances that are important for the correct resolution of the case. As a result of the parties' statements, the amount of factual material to be established is determined. According to the norms of civil procedural law, the parties are not obliged to provide legal support for the claim. The legal qualification of the relationship is the responsibility of the court.

In this situation, the parties may not always accurately refer to acts of legal significance. The volume of facts of the subject of proof in the course of the process in a civil case may be subject to change. The change in the subject of proof is associated with the right of the parties to change the basis of the claim, increase or decrease the amount of claims. The exercise of these dispositive rights entails a change in the actual composition examined by the court and the volume of evidence involved. It should also be remembered that the subject of proof includes all facts of legal significance, even if the plaintiff and the defendant did not refer to them. Therefore, it is more expedient to say that the subject of proof is determined on the basis of the norm of substantive law to be applied by the court.

In judicial practice, a certain difficulty is caused by the correct determination of the subject of proof when resolving disputes arising from legal relations settled by the norms of substantive law with a relatively certain disposition (disputes about deprivation parental rights, on the transfer of children to foster care, on eviction due to the impossibility of living together, etc.), when the court must take into account the specific circumstances of the case, it is itself called upon to evaluate certain facts from the point of view of their legal significance.

Let's see this with an example:

The Oktyabrsky Federal Court of the Admiralteisky District, composed of the presiding judge N., with the participation of the prosecutor D., lawyer S., with the secretary L., having examined in an open court hearing a civil case on the claim for deprivation of parental rights, ESTABLISHED:

Plaintiff A. filed a lawsuit against R. for deprivation of his parental rights to daughters T., born in 1990 and E., born in 1996. At the hearing, the plaintiff supported the claim and explained that the defendant - the father of the children does not fulfill the duties of the parent - is not involved in their upbringing, is not interested in their physical and moral development, does not support them financially, does not communicate with the children. Lawyer S. supported the claim, substantiating his legal position. The prosecutor, giving an opinion on the case, asked to satisfy the claim. The representative of the guardianship and trusteeship body supported the claim in full, asked to leave the children in the care of their mother. The court, having heard the participants in the process, finds the claims justified and subject to satisfaction. Parents may be deprived of parental rights in relation to their minor children on the basis of Art. 69 of the Investigative Committee of the Russian Federation, if they evade the responsibilities of raising children, abuse their parental rights, refuse to take the child from a medical or other child care institution, are sick with chronic alcoholism or drug addiction. In the course of the consideration of the case, it was established that the defendant R. has been living separately for a long time, having created a new family. He is not involved in raising children, does not support them financially, moreover, he is prosecuted for evading the payment of alimony. The court considers that in connection with the above, the defendant should be deprived of parental rights in relation to the daughters T. and E.

Based on Art. 195-199 Code of Civil Procedure of the Russian Federation, the court DECIDED:

To deprive the defendant R. of parental rights in relation to minors T. and R., transferring them to the upbringing of A.'s mother.

In civil proceedings, such norms of law are called "situational" norms, since they have settled legal relations with the expectation of judicial discretion, more precisely, the judicial concretization of the generalizing circumstances fixed in the law, with which legal consequences are associated.

Output. Thus, the subject of proof is a special procedural institution. It includes those facts that have substantive legal significance, facts, without clarification of which it is impossible to correctly resolve the case on the merits.

Subject of proof- a set of legal facts, the truth of which must be clarified by the court in order to resolve the case. The subject of proof is established by the court and the persons participating in the case, and during the process it may be subject to changes for various reasons (due to the refusal of the plaintiff from part of the claim, the defendant's change of objections to the claim, filing a counterclaim, etc.). Facts that are not subject to proof should not be included in the subject of proof. These include facts well-known and prejudicial.

Well-known facts - facts, the existence of which is known to a wide range of people (historical facts). Since common knowledge is a relative concept, the court is given the right in each specific case recognize this or that fact as generally known. In this regard, the court must make a reasoned decision.

Prejudicial - facts established by a verdict that has entered into legal force or a court decision in other court cases in which the same persons participated. They are not subject to repeated proving, are obligatory for the court considering the case, and therefore are not included in the subject of proof. The court is limited only to requesting a copy of the corresponding judgment or decision. The facts become prejudicial after the entry of the judgment or decision into legal force and lose their prejudice if they are canceled in the manner prescribed by law. Not all facts established by a verdict or a court decision may become prejudicial.

If the court is considering a case on the civil-legal consequences of the actions of a person against whom the court's verdict has been passed, then only the fact of committing a crime established by the verdict and by this person becomes prejudicial. If in the verdict the issue of the civil claim was not resolved, then for the court considering this civil claim arising from the criminal case, in this part the verdict has no prejudicial force. Conversely, a decision in a civil case for a court considering a criminal case against the same person does not have prejudicial significance when investigating the question of the guilt of this person.

A decision or sentence that has entered into legal force acquires prejudicial significance only for the persons involved in the case and their successors, but not for persons whose interests are affected by this decision or sentence, but who did not participate in the case. Although within the meaning of Part 4 of Art. 61 Code of Civil Procedure of the Russian Federation (a court verdict in a criminal case that has entered into legal force is mandatory for the court considering the case on the civil consequences of the actions of the person against whom the verdict took place, only on the issues of whether these actions took place and whether they were committed by this person) only the facts established by a verdict or a court decision that have entered into legal force acquire prejudicial significance. Legal scholars believe that the facts established by an act (decision, decree) of any law enforcement body within its competence are of prejudicial importance for a court considering a case with the participation of the same persons.

Relevance and admissibility of evidence.

Evidence-based activity is regulated in detail by law.

The proof process is reduced to 3 general rules:

1) the relevance of evidence;

2) admissibility of evidence;

3) distribution of responsibilities for proving .

The rule of relevance obliges the court to accept only those of the presented evidence that are relevant to the case. The rule of relevance obliges the court to find out and investigate all the facts and circumstances relevant to the case and at the same time to remove from the case everything that has nothing to do with the case under consideration. The rule of admissibility establishes that the circumstances of the case, which, according to the law, must be confirmed by certain means of proof, cannot be confirmed by any other means of proof.

Admissibility in civil proceedings is inextricably linked with the forms of transactions established in civil law and the consequences of non-compliance with the form established by law. So, non-observance of the simple written form of the foreign economic transaction entails the invalidity of the transaction. If the law does not directly speak of invalidity, non-observance of the form of concluding a transaction entails the impossibility of using certain funds by the parties.

Distribution of proving duties between the parties.

Rule of division of responsibilities for proof(Article 56 of the Code of Civil Procedure): the duty of proof is imposed on the person who puts forward the corresponding claim or objection .

A number of laws contain exceptions to the general rule dictated by the interests of protecting the rights of a party placed in more difficult conditions of proof, shifting the duty of proving a fact or refuting it not to the side that claims it, but to the opposite one (presumption). Presumptions are called private rules for the allocation of duties to prove.

In civil proceedings, there is presumption of non-responsibility, by virtue of which the obligation to prove the facts testifying to the violation of the right by the defendant lies with the plaintiff. In some cases, the law establishes special presumption of evidence: presumption of guilt of the tortfeasor; presumption of guilt of the distributor of defamatory information, etc. In these cases, the plaintiff must prove only the existence of conditions under which the fact under investigation took place; the defendant must prove the absence of his guilt.

Testimony as a means of proof in civil proceedings.

Witness- a person who may be aware of any information about the circumstances that are important for the consideration and resolution of the case. The age of citizens who can be summoned to court as witnesses is not limited; the decision of the issue of summoning a minor witness to the court is at the discretion of the court.

The following persons cannot be summoned to court and questioned as witnesses:

1) representatives in a civil case or defenders in a criminal case, a case of an admin offense - about the circumstances that became known to them in connection with the performance of the duties of a representative or defender;

2) judges, jurors, people's or arbitration assessors - on issues that arose in the deliberation room in connection with the discussion of the circumstances of the case when passing a court decision or sentence;

3) priests of religious organizations that have passed state registration - about the circumstances that became known from confession.

Refuse from giving testimony has the right:

a) a citizen against himself;

b) spouse against spouse; children, including adopted children, against parents, adoptive parents; parents, adoptive parents against children, including adopted children;

c) brothers, sisters against each other; grandfather, grandmother against grandchildren and grandchildren against grandfather, grandmother;

d) deputies of legislative bodies - in relation to information that became known to them in connection with the exercise of parliamentary powers;

e) the ombudsman for human rights in the Russian Federation - in relation to information that became known to him in connection with the performance of his duties.

The witness is obliged to appear in court at the appointed time and give truthful testimony. For refusal, evasion of testimony, the witness is responsible under Article 308 of the Criminal Code, for knowingly giving false testimony - under Article 307 of the Criminal Code.

Procedural rights of a witness:

Give testimony in your native language;

When giving testimony, use written notes if the testimony is associated with data that are difficult to remember;

Witnesses (workers and employees) have the right to maintain their average earnings while participating in the trial;

Non-workers and employees - on remuneration for distracting them from their usual activities;

A witness summoned by a court from a remote location has the right to reimbursement of travel and rental expenses incurred in connection with the appearance in court.

At the stage of preparing the case for trial, the judge decides the issue of summoning witnesses to the court session. If the witness is not able to appear in person at the hearing, the judge decides on the question of questioning the witness at the place of his stay. During the trial stage, witnesses are removed from the courtroom prior to their interrogation. Each witness is interrogated separately, after which he remains in the hall until the end of the trial, unless the court allows him to leave earlier. Testimonies of witnesses, collected in order to secure evidence, a letter of assignment or obtained at the location of the witness, must be read out at the hearing.

Written evidence as a means of proof in civil proceedings.

Written evidence- objects on which certain thoughts are expressed with the help of signs, containing information about facts and circumstances relevant to the case (acts, contracts, certificates, business correspondence, other documents and materials made in the form of a digital, graphic record, including those received by facsimile, electronic or other communication or in another way that allows to establish the authenticity of the document, court sentences and decisions, other court orders, protocols of procedural actions, court records, attachments to the protocols of procedural actions (diagrams, maps, plans, drawings)).

Acts - decrees, decisions, orders, etc. issued by state authorities and administrations within their competence. The documents - personal documents of citizens, written media that certify certain facts related to the commission of legal significant facts (contracts, applications, payment documents, etc.). Business correspondence does not have a definite form established by the rules. It is written evidence if it contains information relevant to the case. Personal correspondence can also be written evidence if it confirms or refutes legal facts. Various technical media - cards, blueprints, schemes, plans - when investigating in court, they often require decryption with the help of specialists as evidence.

If necessary, the court can be accepted as evidence the documents, received by facsimile, electronic or other communication. Taking into account the opinion of the persons participating in the case, the court may also examine the submitted audio- or videotapes. These materials are evaluated in conjunction with other evidence. At the hearing, the written evidence is read out and presented to interested persons, if necessary, to experts and witnesses. Personal correspondence may be read out in open court session only with the consent of the persons between whom it took place; if they have objections, personal correspondence shall be read out and examined in a closed court session.

In the case of a statement about falsification of written evidence the court must take measures to ascertain its good quality. The court may order a forensic examination to find out the fact of forgery, use other evidence for this. Falsification of evidence in a civil case by a person participating in the case or his representative is punishable by a fine.

Physical evidence and audio-video recordings.

Evidence- objects, things that their appearance, quality, properties, special signs left on them by traces, location can serve as a means of establishing facts. Articles 74, 75 and 76 of the Code of Civil Procedure determine the procedure for storing material evidence, examining material evidence subject to rapid damage, and disposing of material evidence.

Evidence acquires the status of judicial evidence, subject to the observance of the procedure established by law for involving their process and obtaining information relevant to the case, information on the facts included in the subject of proof, i.e. in a procedural way. In relation to material evidence, the same rules for submission and reclamation apply as for written evidence.

A person presenting a certain object as material evidence or applying for its reclamation must indicate what circumstances relevant to the case can be established by this evidence. A person, filing a petition for the reclamation of material evidence from persons participating or not participating in the case, must not only describe the given thing, but also indicate the reasons preventing its independent receipt, the grounds on which he believes that the thing is with the given person or organization (Art . 59 Code of Civil Procedure). The way to study material evidence is their inspection.

Audio recordings those documents that contain sound information recorded by any sound recording system fall within the definition of phonodocument. Video recordings- under the definition of an audiovisual document - a document containing visual and audio information.

The Code of Civil Procedure does not provide a definition of audio and video recordings, but it contains a prescription that a person submitting audio and (or) video recordings on electronic or other media, or requesting their reclamation, is obliged to indicate when, by whom and under what conditions the recordings were made. (Article 77 of the Code of Civil Procedure). The fundamental nature of this requirement is determined by the fact that, especially with respect to this kind of materials, there is a possibility of obtaining them. illegal by.

Established a procedural order of investigated audio-video recordings. Their reproduction is carried out in the courtroom or other special room equipped for this purpose, indicating in the minutes of the court session the signs of reproducing sources of evidence and the time of reproduction. After that, the court hears the explanations of the persons participating in the case. If necessary, the playback of the audio-video recording can be repeated in whole or in part. Audio-video recordings containing personal information are reproduced and examined in an open court building only with the consent of the persons to whom these recordings directly relate. Otherwise, assigned closed meeting. In necessary cases, to clarify the information contained in the audio-video recording, the court may engage a specialist or appoint an expert examination (Article 185 of the Code of Civil Procedure).

Preparing the case for trial. Actions of the court and the parties to prepare cases for trial.

Tasks of the stage of preparing the case for trial (Article 148 of the Code of Civil Procedure):

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

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

3) resolution of the issue of the composition of persons participating in the case, other participants in the process;

4) presentation of the necessary evidence by the parties, other persons participating in the case; 5) reconciliation of the parties.

The preparation of the case begins from the moment the application is received and the parties are explained to the parties of their procedural rights and obligations (Article 150 of the Code of Civil Procedure), (must be completed in 7 days). The judge can extend the period up to 20 days. To determine the subject of proof, the judge interrogates the plaintiff on the merits of the stated requirements; clarifies objections from the defendant; offers to submit additional evidence; explains to the plaintiff his procedural rights and obligations. The judge similarly calls and interrogates the defendant, if the defendant has a noteworthy objection to the claim. The judge must explain to the defendant his right to present counterclaims to the plaintiff. When participating in the case of co-plaintiffs, co-defendants, third parties, the judge must question them.

Judge:

1) resolve the issue of replacing the inappropriate party;

2) qualifies the disputed legal relationship of the parties;

3) decides the issue of attracting citizens, organizations interested in the outcome of the case as third parties , co-plaintiffs and co-defendants;

4) decides on the participation of the prosecutor in the case (if his participation is not directly provided for by the law);

5) invites the persons participating in the case to present the evidence they have by the day of the hearing of the case; decides the issue of summoning witnesses to the court session; requests written and material evidence from citizens and organizations or issues requests for evidence to the court to persons participating in the case; appoints expertise and experts to conduct; inspects written and material evidence. If it is necessary to collect evidence in other locality the court instructs the relevant court to carry out certain procedural actions.

The judge makes a ruling on the preparation of the case for trial, in which he indicates what actions should be taken. The judge sends (serves) the defendant copies of statement of claim and the documents attached to it, substantiating the claims of the plaintiff, and invites to submit evidence in support of his objections. Failure to submit written explanations and evidence by the defendant does not prevent the consideration of the case on the basis of the evidence in the case.

In the presence of the circumstances provided for by the Code of Civil Procedure (Articles 215, 216, 220, paragraphs 2 - 6 of Article 222), the proceedings on the case may be suspended or terminated, and the application left without consideration. Procedural actions related to the issuance of a ruling on the termination of the proceedings in connection with the rejection of the claim or the approval of the settlement agreement must be reflected in the minutes. A statement on the waiver of the claim, on the conclusion of an amicable agreement shall be attached to the case. The court is obliged to explain to the parties the consequences of such a procedural action.

Preliminary hearing.

At the stage of preparing the case for trial, the judge may appoint preliminary hearing(Article 152 of the Code of Civil Procedure). It is possible to conclude an amicable agreement, suspend the proceedings on the case, leave the application without consideration, terminate the proceedings not only at the stage of trial, but also at the stage of preparing the case for trial. Administrative actions of the parties and the expression of the will of the court require procedural consolidation. For this goals first of all, the possibility of holding a preliminary court session is provided. It aims to speed up the process without prejudice to the implementation of the principle of legality.

In addition to the purpose of the procedural reinforcing the administrative actions of the parties and ending the proceedings without making a decision, the judge may appoint a preliminary court session to determine the circumstances that are important for the rules for considering and resolving the case, to determine the sufficiency of evidence, to investigate the facts of missing the limitation period and other terms of going to court.

The parties are notified of the time and place of the preliminary court session. They have the right to present evidence, give reasons, make motions. The proceedings on the case may be suspended, the application left without consideration by the judge's ruling made in the preliminary court session.

In a preliminary session at the stage of preparation of the case, the judge can establish the facts of admission without valid reasons of the limitation period on the basis of the defendant's objections or omission without valid reasons of the terms of appeal to the court and make a decision to dismiss the claim without examining other factual circumstances, since their study is neutralized by violation of the terms limitation period and terms of going to court. In this case, a court decision is made that meets the general requirements for this type of judicial acts.

A protocol is always drawn up about the preliminary court session held at the stage of preparation of the case according to the general rules of its conduct (Articles 229, 230 of the Code of Civil Procedure).

The value of the trial. The order of the court session.

Trial- the main the stage of the civil process, during which a fair and legal resolution of the case on the merits takes place. Considering the case, the court of 1 instance must understand the essence of the claims of the plaintiff and the objections of the defendant, directly examine the evidence, establish the factual circumstances of the case, find out the rights and obligations of the parties, the interests of the applicant protected by law. The trial stage ends with a judgment on behalf of the Russian Federation... When resolving a case, the court is obliged to make a lawful and well-grounded court decision that protects the rights and interests of citizens and legal entities protected by law.

The trial stage is divided into stages:

1) preparatory part;

2) investigation of the circumstances of the case or consideration of the case on the merits;

3) judicial pleadings;

4) the conclusion of the prosecutor;

5) the decision and the announcement of the decision.

A sitting of a district (city) people's court shall be presided over by a judge or the president of the court. , in sessions of other courts - a judge, chairman or deputy chairman of the respective court. The presiding judge presides over the court session . The objections of the persons participating in the proceedings against the actions of the presiding judge shall be recorded in the minutes of the court session, and the issue shall be resolved by the entire composition of the court.

Presiding provides educational impact trial. His actions must be official, correct, demonstrating strict compliance with the laws.

The presiding judge is obliged maintain proper order at the hearing (Art. 158 of the Code of Civil Procedure): when the judges enter the courtroom, all those present in the courtroom stand up; court decisions are heard standing; the participants in the process address the judges with the words: "Dear court!", give their testimony, explanations while standing. Departure from the rule is possible with the permission of the presiding officer; the trial takes place in conditions that ensure proper order in the court session and the safety of the participants in the process; the proper order in the court session should not be hindered by the actions of citizens present in the courtroom and taking photographs and video recordings permitted by the court, broadcasting the court session on radio and television.

The presiding judge on behalf of the court issues a warning to the person who violates the order during the proceedings. . In case of repeated violation of the order, the participants in the process may be removed from the courtroom by the court's decision, the citizens present in the courtroom - by order of the presiding judge.

Procedural and legal consequences of failure to appear at the court session of the participants in the process.

Persons participating in the case, in the event of their failure to appear in court, must notify the court of the reasons for failure to appear and provide evidence of the validity of these reasons (part 1 of article 167 of the Code of Civil Procedure).

If any of the persons participating in the case, in respect of whom there is no information about their notification, fails to appear at the court session, the proceedings are postponed.

If the persons participating in the case are notified of the time and place of the court session, the court shall postpone the proceedings if the reasons for their failure to appear are recognized as valid.

The court shall have the right to consider the case in the event that any of the persons participating in the case and notified of the time and place of the court session fail to appear, if they have not provided information about the reasons for their failure to appear, or the court recognizes the reasons for their failure to appear disrespectful.

The court has the right to consider the case in the absence of the defendant, according to the evidence in the case, if: the defendant did not inform the court about the valid reasons for failure to appear and did not ask to consider it in his absence.

If the plaintiff, who did not ask to hear the case in his absence, did not appear in court on a secondary summons, and the defendant does not require consideration of the case on the merits, the court leaves the application without consideration, which entails the end of the process (part 7 of article 222 of the Code of Civil Procedure). Similar consequences are incurred by the failure of the parties to appear, who did not ask to hear the case in their absence, who did not appear in court on a second summons. If the plaintiff asked to consider the case in his absence, or if the defendant demands that the case be examined on the merits in the absence of such a request, the case may be considered by the court in the absence of the plaintiff (if the court does not recognize his participation in the court session as compulsory) according to the evidence in the case.

The parties have the right to ask the court to consider the case in their absence and send them copies of the court decision.

The court may postpone the proceedings at the request of the person participating in the case, due to the failure of his representative to appear for a good reason.

If witnesses, experts, specialists, translators fail to appear at the court session, the court listens to the opinion of the persons participating in the case on the possibility of considering the case in the absence of witnesses, experts, specialists, translators and makes a ruling on the continuation of the trial or its addition.

In case of refusal to appear voluntarily, a person subject to a court ruling or a judge's ruling is brought to the place of summons forcibly, by being accompanied by a bailiff to ensure the established procedure for the activities of the courts or by a group of bailiffs.

Postponement of the proceedings.

Postponement of proceedings- the action of the court on postponement of the case to a later date, when 1 meeting ends in an incomplete state and the time of the next fully renewable meeting is appointed. The postponement of the proceedings becomes necessary when, in the course of preparing the case for consideration, any significant moments for the case remain unrecorded, or in the case of failure to appear at the court session of persons, without whose participation it is impossible to consider. Affairs. In some cases, the postponement of the case is specifically provided for by law (when considering cases of divorce (Article 22 of the SK), in the absence of the consent of 1 of the spouses, it is mandatory to postpone the case for a period of 3 m to reconcile the spouses). Postponement of the case at the discretion of the court is called optional if prescribed by law - compulsory... He appealed against the ruling on the adjournment of the case. not is subject.

The court shall issue a reasoned ruling on the postponement of the proceedings. In it, he is obliged to indicate the reasons for the postponement of the case and the procedural actions that must be performed in order to ensure the possibility of considering the case at the next court session. Postponing the proceedings, the court appoints the day of a new court session, taking into account the time required to summon the persons participating in the case, or to demand evidence, which it announces to the persons who have appeared on receipt. Persons who did not appear and who were again involved in the proceedings are notified of the time of the new court session by summons.

When the trial of the case is postponed, the court may interrogate the witnesses who have appeared, if all persons participating in the case are present at the trial. A new trial of the case after its postponement must begin at first.

Suspension of the Prospect Island in the case.

Suspension of production- temporary termination. percent actions in the case, caused by the onset of the obs-in specified in the law, obstructed further court. Depending on the grounds, the suspension of the pr-va is subdivided into optional and obligatory.

Mandatory suspension produced in the following cases:

1) the death of a citizen, if the disputed legal relationship allows for succession;

2) the termination of the existence of a legal entity - a party to the case;

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

4) participation of the defendant in hostilities, performing tasks in a state of emergency or martial law, in conditions of military conflicts; or the request of the plaintiff participating in hostilities or in the performance of tasks under conditions of a state of emergency or martial law, in conditions of military conflicts;

5) the impossibility of considering this case until the resolution of another case, considered in a civil, admin or ug. production;

6) the appeal of the court of the Constitutional Court with a request on the conformity of the law to be applied to the Constitution.

Optional suspension (Article 216 of the Code of Civil Procedure) is permitted in the following cases:

1) the party is in a medical institution;

2) the search for the defendant;

3) appointing an expert examination by the court;

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

The timing of the suspension of proceedings (Article 217 of the Code of Civil Procedure) is associated with circumstances, the occurrence of which obliges the court to resume proceedings. Priost. drawn up by a court ruling, which can be appealed.

The proceedings on the case shall be resumed after: 1) elimination of the circumstances that caused the suspension, 2) at the initiative of the court itself, 3) at the request of the persons participating in the case.

Leaving the application without consideration.

Leaving an application without consideration- the form of ending a civil case without making a decision.

Grounds (Article 222 of the Code of Civil Procedure):

1) non-compliance by the plaintiff with the established pre-trial procedure for resolving the dispute;

2) filing an application by an incapacitated person;

3) signing or submission of an application by a person who does not have the authority to sign it or bring a claim;

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

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

6) failure to appear in court on the secondary summons of the parties who did not ask for the proceedings in their absence;

7) failure to appear in court on the second summons of the plaintiff, who did not ask to hear the case in his absence, and the defendant does not require consideration of the case on the merits.

The court, at the request of the plaintiff or the defendant, cancels its ruling on leaving the application without consideration on the grounds specified in paragraphs 6 and 7, if the parties present evidence confirming the validity of the reasons for failure to appear at the hearing and the impossibility of reporting them to the court.

An ancillary complaint may be filed against a court ruling to refuse to satisfy such a request. Article 263 of the Code of Civil Procedure provides for one more ground for leaving an application without consideration: when a dispute about the right arises when considering a case in a special proceeding. Interested parties in this case have the right to file a claim on a general basis.

In cases where the application is left without consideration, the court makes an appropriate ruling. In it, the court is obliged to indicate how to eliminate the circumstances that hinder the consideration of the case. After the elimination of the conditions that served as the basis for leaving the application without consideration, the interested person has the right to apply to the court again with an application in accordance with the general procedure.

Termination of the proceedings.

Termination - termination of the case in connection with the circumstances provided for by law and completely excluding the possibility of legal proceedings:

1) the case is not subject to consideration and resolution in court in the manner of civil proceedings on the grounds provided for in paragraph 1 of part 1 of Art. 134 Code of Civil Procedure;

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

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

4) the parties have entered into an amicable agreement and it has been approved by the court;

5) there is a decision of the arbitral tribunal, which has become binding on the parties, adopted in a dispute between the same parties, on the same subject matter and on the same grounds, unless the court refused to issue a writ of execution for compulsory execution decisions of the arbitral tribunal;

6) after the death of a citizen who was 1 of the parties to the case, the disputed legal relationship does not allow for succession or the liquidation of the organization that was 1 of the parties to the case is completed.

The proceedings are terminated by a ruling of the court, which indicates that repeated appeal to the court in a dispute between the same parties, on the same subject and on the same grounds is not allowed. An ancillary complaint or a protest can be filed against the court ruling.

The essence and significance of the judgment. Requirements for a judgment.

Judgment- a court decision containing a state-imperious, individually-specific prescription for the application of the rules of law to the facts and legal relations established in court proceedings. the best option individual behavior. Being binding, the decision is a means of protecting the subjective rights of persons who have applied to the court for the resolution of the substantive dispute that has arisen. It also acquires educational significance, demonstrating the inviolability of the law and the obligation to comply with it.

The court decision must meet 2 requirements - legality and validity. The decision is legal, if it is made in strict compliance with the rules of procedural law, in full compliance with the substantive law that apply to this legal relationship, or based on the application, where necessary, of a law regulating a similar legal relationship, or proceeds from the general principles and meaning of legislation. Violation or incorrect application by the court of the norms of substantive or procedural law leads to cancel the decision.

The validity of the court decision consists in setting out all the circumstances relevant to the case, comprehensively and fully investigated in the court session, and providing evidence in support of the conclusions about the established circumstances of the case, the rights and obligations of the parties. The concept of validity includes 3 parties: circumstances, evidence and conclusions.

The decision is subject to cancellation if:

1) the legal significant circumstances are incorrectly identified;

2) circumstances relevant to the case, which the court considers established, have not been proven;

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

4) the norms of substantive and procedural law are violated or incorrectly applied.

Dr requirements for a court decision:

a) fullness- the decision must contain answers to all the claims made by the plaintiff and considered by the court and the objections raised against them;

b) certainty- a clear answer of the court to the question of what rights and obligations each of the parties is endowed with;

c) the judgment must have a certain shape- details and components in accordance with the requirements of the law; must be set out in writing and signed by the judge (s).

One of the most difficult tasks when applying for judicial protection in the preparation and trial of civil cases is to determine the composition of the evidence that would contain sufficient factual data to legally and reasonably resolve the stated claims. The range of facts to be established in each case is determined by the court, taking into account the requirements and objections of the parties, on the basis of the substantive law applicable to the established legal relationship.

The completeness of the case materials, on which the court decision depends, is largely determined by the subject of proof. In this case, certain connections are observed: the basis of the claim must correspond to its subject matter, since, according to the law, the basis of the claim is "the circumstances on which the plaintiff bases his claim." (Clause 4, Art. 126 of the Code of Civil Procedure of the RSFSR). The defendant opposes the claim of the plaintiff, if he argues against his legitimacy, his objections. Each party is required to prove their claims. Ultimately, in court proceedings, a certain range of reliably established circumstances is synthesized, which are the basis for the application of the rule of law.

For the correct resolution of any case, the court must find out all the legal facts relevant to the case.

Let's look at an example.

A. Yakunin filed a claim against M. Yakunin for the reclamation of property. The plaintiff indicated that in May 1989, at his place of work, he was granted the right to purchase a VAZ-21063 car worth 9,000 rubles in order of priority. Not having the necessary amount to purchase a car, he borrowed 6500 rubles from M. Yakunin's brother. with the condition that he will use a new car until the debt is repaid, and he, A. Yakunin, during the same period - a Moskvich-21040 car, owned by M. Yakunin. Since May 1989, they have used cars under mutually issued powers of attorney ... In connection with the expiration of the three-year term of the power of attorney, A. Yakunin intended to return the debt to his brother and receive his VAZ-21063 car, but he refused to accept the amount of the debt and return the car.

Yakunin M. did not recognize the claim and presented a counter claim to recognize as valid the contract of exchange of cars, which, according to him, took place between him and his brother in May 1989. "VAZ-21063" 6500 rubles. and his own car "Moskvich-21040", and that one bought him a car. Before completing the transaction, they issued each other notarized powers of attorney for the right to drive cars. Subsequently, A. Yakunin began to evade legal registration of the transaction, and upon the expiration of the term of the power of attorney demanded the return of the car.

By the decision of the Zadonsk District People's Court (upheld by the Judicial Collegium for Civil Cases of the Lipetsk Regional Court), A. Yakunin's claim was denied, and M. Yakunin's counterclaim was satisfied.

The decision of the Presidium of the Lipetsk Regional Court dismissed the protest of the Deputy Chairman of the Supreme Court of the Russian Federation, in which the question of canceling the decision of the People's Court and the cassation ruling was raised due to incomplete clarification of the circumstances of the case and incorrect application of the law.

In protest, the Deputy Chairman of the Supreme Court of the Russian Federation raised the issue of canceling court decisions on similar grounds.

The Judicial Collegium for Civil Cases of the Supreme Court of the Russian Federation on September 30, 1993 satisfied the protest, indicating the following.

Resolving the arisen dispute, the court found that between Yakunin A. and Yakunin M. a contract for the exchange of cars had been concluded.

In the opinion of the presidium of the regional court, which upheld the decision of the people's court, there was no need to check A. Yakunin's argument about the receipt of a loan of 6,500 rubles, since the existence of such an agreement cannot be confirmed by witness testimony due to the lack of written evidence.

The Presidium indicated that the exchange of powers of attorney for the right to drive cars is evidence of the conclusion of an exchange agreement, which has been executed.

The motives on which the presidium agreed with the court's decision cannot be considered justified.

Considering that the barter transaction between the parties was concluded, actually executed, does not contain anything illegal, that A. Yakunin evades the notarization of the contract, the court, guided by Art. 47 of the Civil Code, recognized the transaction as valid.

Meanwhile, this conclusion is not confirmed by the case materials.

According to Art. 42 of the Civil Code, transactions are made orally or in writing (simple or notarized).

Notarization of transactions is mandatory only in the cases specified in the Law (Article 47 of the Civil Code).

Since the Civil Code does not provide for the obligatory notarization of a car exchange agreement, such a transaction, taking into account their value, in accordance with Art. 44 of the Civil Code could be done in simple writing.

In case of non-compliance with the written form of the transaction required by law, in the event of a dispute, the circumstances of its conclusion in accordance with the rules of Art. 44 and 46 of the Civil Code are confirmed only by written evidence.

Contrary to the requirements of the law, the court referred to the testimony of the witness Stadnikova, who was allegedly present at the conclusion of the contract.

There is no evidence in the case that a written exchange agreement was concluded between the parties.

The opinion of the court that M. Yakunin transferred 6500 rubles to his brother A. Yakunin. in connection with the agreement on the subsequent exchange of cars, based solely on the explanations of M.Yakunin.

The parties confirmed the fact that Yakunin A. had received this money, but the court did not assess his argument that he received a loan and acquired the car as his property.

A. Yakunin argued that the cars were transferred to each other for temporary use. The court ignored the fact that the legal registration of the VAZ-21063 car for A. Yakunin and the Moskvich-21040 car for M. Yakunin was preserved.

The court has not been presented with evidence showing that there were any obstacles to the conclusion of a barter agreement between the brothers if they wished to conclude such a transaction in May 1989.

In this situation, court decisions cannot be recognized as lawful and well-founded, therefore the case is sent for a new judicial review.4

The totality of legal facts, on the establishment of which the resolution of the case depends on the merits, is called the subject of proof.

The term "subject of proof" is explained by the fact that all these facts must be proved in the process, that is, they are what must be proved. They are also called the required facts, since the court must establish them, find them, in order to resolve the case. Thus, the required facts and the subject of proof are one and the same. 5.

Protection of a violated or contested right, or an interest protected by law, takes place in a form of claim, which is used not only when applying to the court, but also to arbitration and other bodies of civil jurisdiction.

A claim as an appeal to the court is a legal action as a whole - a unilateral expression of will, a claim directed to the court 6, legal relations) on the basis of the legal facts (circumstances of the case) indicated by the plaintiff. As a result of the claim, according to the law (Article 6 of the Fundamentals of Civil Procedure), the court is called upon to consider and resolve the controversial case; this is the "initiation of a civil case in court" (Article 6 of the Fundamentals civil relationship) on the basis of legal proceedings).

The plaintiff, when substantiating the claim, must indicate the legal facts that give rise to his rights and obligations. At the same time, the court is obliged, not limited to the materials and explanations presented, to take all measures provided by law for a comprehensive, complete and objective clarification of the actual circumstances of the case, the rights and obligations of the parties. The court cannot limit itself to the instructions of the plaintiff regarding the basis and subject of the claim. Therefore, at the stage of initiating a case, in order to complete the materials, the judge must find out from which legal relationship the plaintiff's claims arise, and establish what circumstances need to be checked in the court session.

The composition of the case materials in the civil process does not remain unchanged, since during the process the plaintiff has the right, at any stage, to change the basis of the claim and refer to other circumstances that were not previously indicated. The court is not bound by the circumstances indicated by the plaintiff as the basis for the claim, for it must establish valid relations between the parties - otherwise the decision may be canceled.

The composition of the facts included in the subject of proof is different for each case. The court determines it on the basis of the requirements and objections of the parties and guided by the norms of substantive law, which should be applied in this case.

The parties in the civil process are charged with the so-called burden of approval: when making demands or objections in court, they themselves must indicate the circumstances, the facts by which the claims and objections are substantiated. It is from these facts that, first of all, the subject of proof in the case is formed.

The subject of proof primarily includes the facts of the basis of the claim, that is, the legal facts indicated by the plaintiff as the basis for the claim. The subject of proof also includes the facts of the basis of objections to the claim, that is, the legal facts indicated by the defendant as the basis for the objections to the claim. in cases where the process is complicated by the entry into it of a third person who claims independent claims, or by filing a counterclaim, the facts of the basis of such claims are also included in the subject of proof in the case. But the parties may be wrong in their references to facts. On the one hand, they can indicate facts with which the norms of substantive law do not in fact connect legal consequences, that is, facts that have no legal significance in the case. Sometimes, on the contrary, they do not indicate all the facts with which the legal consequences are associated. Therefore, in the final analysis, the court determines the range of facts included in the subject of proof.

If the parties refer to facts that have no legal significance, the court should not examine them. If the parties do not indicate all the facts of significance in the case, the court must, on its own initiative, include them in the subject of proof: no reference was made to any of them "(part 2 of article 50 of the Code of Civil Procedure as amended by the Law of November 30, 1995).

When determining which of the facts indicated by the parties have legal significance and which facts need to be established, the court must be guided by the substantive law governing the disputed relationship. The hypotheses of these norms indicate the facts on which the rights and obligations of the parties depend and which, therefore, are included in the subject of proof in the case.

The subject of proof in the case may include a variety of legal facts, both events and actions, both legitimate and illegal: transactions, contracts, facts of harm and default, birth, death, marriage, deadline, missing deadline etc.

The subject of proof may include not only positive, but also negative facts. In some cases, substantive law rules associate legal consequences with the absence of certain facts. So, by virtue of Art. 681 of the Civil Code of the Russian Federation, failure by the landlord to fulfill his obligation to overhaul gives the tenant the right to terminate the contract or carry out repairs himself at the expense of the landlord. Here, the legal consequences are related to the fact that the capital repairs were not carried out. Consequently, if a claim is filed for termination of the contract on such a basis, then the fact of failure to perform repairs (negative fact) is the basis of the claim and is included in the subject of proof.

The Civil Procedure Code provides for two categories of facts that can be used as the basis for a decision in a case without proof. Therefore, they are not included in the subject of evidence. These are well-known and prejudicially (from the Latin praejudicium - prejudice) established facts (Article 55 of the Code of Civil Procedure of the RSFSR) 7. Generally known are facts that a wide range of people, including judges, are aware of. Part 1 of Article 55 of the Code of Civil Procedure of the RSFSR reads: "Circumstances recognized by the court as generally known do not need proof." The right to recognize a fact as generally known and therefore not in need of proof is given to the court.

Facts prejudicially established, that is, established by a previously issued and entered into force judgment or a court decision in another case, are not subject to proof.

Part 2 of Article 55 of the Code of Civil Procedure of the RSFSR and paragraph 2 of Article 58 of the Arbitration Procedure Code stipulate that the facts established by a court decision that has entered into legal force in one civil case are not proven again in the proceedings of other civil cases in which the same persons are involved. Article 208 of the Code of Civil Procedure of the RSFSR expressly prohibits persons participating in the case from challenging such facts in another process.

In practice, prejudicial facts are especially often encountered when considering recourse claims. If, for example, a claim for compensation for harm brought against the owner of a source of increased danger was first considered, and then a recourse claim is filed against the direct culprit of causing harm, then the fact of causing harm by a source of increased danger and the amount of harm during the consideration of a recourse claim cannot be proven, since were established during the consideration of the main claim.

The facts established by the verdict in a criminal case may also have a prejudicial significance. Such a provision is created, for example, in the case when the court considered the case in a criminal procedure, passed a sentence, and then a claim is brought for compensation for material damage caused by this crime. According to part 3 of Article 55 of the Code of Civil Procedure, a sentence that has entered into legal force in a criminal case is mandatory for the court considering the case on the civil consequences of the actions of the person against whom the verdict was held, on the issues of whether these actions took place and whether they were committed by this person.

In the theory of civil procedural law, even presumed and indisputable facts are sometimes considered to be facts that are not subject to proof. But this is not the case in our legal system. Presumptions exempt only one of the parties from proving certain facts. The other party can present evidence to refute these facts, to prove their absence. The court has the right, and on its own initiative, with the help of evidence, to verify the existence of the presumed facts. Presumptions only redistribute the burden of proving facts, but do not deduce them from the subject of proof.

Indisputable facts are those recognized by one party if the other party had to prove them. In our civil process, recognition of a fact is considered only evidence in the case. A recognized fact is a fact in respect of which proof has already been carried out. This, in essence, is a fact that was subject to proof in the case and was proved by the confession of the other party, and therefore there is no reason to exclude him from the list of facts included in the subject of proof in the case.

When considering civil cases, it becomes necessary to clarify a number of circumstances that have procedural significance. For example, in order to resolve the issue of the jurisdiction of the case, it sometimes becomes necessary to clarify the place of residence of the defendant. Then the relevant certificates are requested, which serve as written evidence. eight

To resolve the issue of the opportunity to hear the case if one of the parties fails to appear, the reason for the failure to appear is important. Its respect is established by presenting, for example, such written evidence as a sick leave or a travel certificate. When suspending or terminating a case, it is necessary to find out whether the circumstances specified in the law exist as grounds for the suspension or termination, and so on. All the circumstances on which the resolution of certain procedural issues depends are established with the help of evidence, by proof.

• Civil procedural law
  • Forms of protection of subjective rights and interests of citizens and organizations
  • The concept of civil procedural law
  • Norms of civil procedural law
  • Sources of civil procedural law
  • Civil procedural form
  • Civil procedure
  • Civil procedural law in the system of domestic law
  • Science of civil procedural law
  • Civil procedure as an academic discipline
• Civil procedural principles
  • The concept of civil procedural principle
  • System of civil procedural principles
  • The principle of legality
  • Principle of Judicial Truth
  • The principle of procedural equality
  • Dispositive principle
  • The adversarial principle
  • Legal axioms in civil proceedings
• Civil procedural legal relations
  • The concept of civil procedural legal relations
  • Preconditions for the emergence of civil procedural legal relations
  • Object and content of civil procedural legal relations
  • Subjects of civil procedural legal relations
  • Classification of civil procedural relations
• Persons participating in the case
  • Composition of persons participating in the case
  • The concept of the persons participating in the case and the features that characterize them
• Parties to civil proceedings
  • The concept of the parties
  • Procedural rights and procedural obligations of the parties
  • Procedural complicity
  • The right side and the wrong side
  • Civil procedural succession
• Third parties in civil proceedings
  • Third parties making independent claims on the subject of a dispute
  • Third parties who do not make independent claims on the subject of the dispute
    • Third parties who do not make independent claims on the subject of the dispute - page 2
• Participation of the prosecutor in civil proceedings
  • Purpose and basis for the participation of the prosecutor in civil proceedings
  • Forms of the Prosecutor's Participation in the Consideration of a Civil Case in the Court of First Instance
  • The legal nature of the participation of a prosecutor in civil proceedings
• Subjects defending the rights and interests of other persons in civil proceedings on their own behalf
  • Grounds and purpose of participation in civil proceedings of subjects who protect the rights and interests of others in their own name
  • Going to court with a claim (statement) in the interests of another person
  • Participation in civil proceedings of state bodies, local self-government bodies for giving an opinion
• Representation in court
  • The concept of representation in court
  • Types of representation in court
  • Powers of a representative in court
• Civil procedural responsibility
  • The concept and purpose of civil procedural liability
  • Types of civil procedural liability
• Judicial jurisdiction of civil cases
  • The concept of judicial jurisdiction in civil cases
  • Juridical Jurisdiction of Claims
  • Jurisdiction of non-litigation matters
• Jurisdiction of civil cases
  • Concept and types of jurisdiction
  • Generic jurisdiction
  • Territorial jurisdiction
    • Territorial jurisdiction - page 2
  • Transfer of a case from one court to another
• Procedural terms
  • Concept and appointment of procedural terms
  • Types of procedural terms
• Court expenses
  • The concept and purpose of court costs
  • National tax
  • Legal costs
  • Allocation of court costs
• Forensic evidence
  • Proving is a kind of judicial knowledge of the circumstances of the case
  • Forensic evidence and evidence
  • Subject of proof
  • Distribution of responsibilities for proving. Evidentiary presumptions
  • Classification of evidence
  • On Immediacy in Examining Evidence
• Forensic evidence
  • Explanations of the parties and third parties
  • Testimony of witnesses
  • Written evidence
  • Evidence
  • Expert opinions
  • Other means of proof
• Court order
  • Court order as summary judgment
  • Court order as a kind of court order
  • Guarantees of individual rights in summary proceedings

Subject of proof

Any human activity can be characterized as expedient, given that the subject is what it is aimed at. In this regard, judicial evidence is no exception (Art. 49 of the Code of Civil Procedure): the subject of judicial evidence can be called the totality of circumstances that must be established in the manner prescribed by law for the correct (legal and justified) resolution of a civil case.

The value of the subject of proof is as follows:

1. it performs an orienting function in judicial evidence, gives expediency cognitive activities the court, the parties and other persons participating in the case, aiming them at establishing the facts that make up its content;
2. it determines the scope and limits of judicial knowledge;
3. it serves as a criterion for identifying the relevance of each of the evidence available in the case (Article 53 of the Code of Civil Procedure).

The relevance of evidence indicates their relationship with the facts included in the subject of proof. In turn, the elements of the subject of proof are named in the norms of substantive law, on the basis of which the case is subject to resolution. Only those of the presented evidence that are aimed at establishing or refuting the circumstances included in the subject of proving a specific civil case are relevant.

The subject of proof is distinguished:

1. facts of the basis of the considered and resolved claim;
2. facts of objection to the stated legal claim;
3. evidentiary facts;
4. procedural and legal facts of the legality of the establishment and development of this legal procedure;
5. facts necessary for forensic prevention of offenses. On their basis, the court will be able to make private rulings.

The subject of proof must first of all include legal facts of a substantive nature. These facts are indicated in the disposition and hypothesis of those rules of law, on the basis of which the stated claim is to be resolved. The volume and content of the subject of proof also depend on the positions of the disputing parties.

The composition of his facts is determined gradually: first, the plaintiff indicates the facts on the basis of which he requires the provision of judicial protection of his rights, then the defendant, putting forward objections, names a number of factual circumstances. Third parties, the prosecutor, local authorities participating in the proceedings on the basis of Art. 42 Code of Civil Procedure. The judge finally forms the subject of proof during the preparation of the case for the trial and in the court session.

So, the subject of proof includes all the circumstances, without exception, subject to judicial establishment for the legal and reasonable consideration and resolution of the case. In this case, it does not matter whether the parties argue or not regarding certain facts. Even if both conflicting parties do not doubt the existence of certain facts that are important for the correct hearing of the case, the court must nevertheless have convincing practical data on the existence (non-existence) of these indisputable facts.

The subject of proof includes both positive facts (conclusion of a transaction; fulfillment of an obligation; presence, existence, presence of something), and negative (absence of something, failure to complete a transaction, innocence, etc.). The latter are more difficult to establish, but this does not exempt interested persons from proving them, as a rule, with the help of circumstantial evidence.

At the same time, the law (Art. 55 of the Code of Civil Procedure) names two groups of facts as part of the subject of proof that are not subject to proof: well-known and prejudicial.

Well-known facts are facts that a wide range of people, including judges, know about. That is why they do not need to be proven. Even Roman jurists recognized the rule as axiomatic: "The well-known is not proved."

A wide variety of facts can be generally known: for example, about natural disasters, city buildings (for example, the height of a bridge over a river), wars, revolutions, the distance between certain streets, villages, etc. This group of facts is characterized by their locality - what all residents of a city know may not be known to the judges of the capital. Over time, the memory of certain events, actions, movements that in one way or another affect the life of people is erased, and what was generally known 10–25 years ago is now known to a relatively small circle of people.

There is a group of well-known facts, knowledge of which is not characterized by locality. These are the physical, chemical, mechanical, technological properties of things and objects, etc., for example: the fabric of clothing is usually easy to tear; the TV is likely to break from a sharp blow; synthetic detergents - toxic, etc.

Close to well-known facts, which were previously called notorious. They are easily established from written sources, the reliability of which is usually not disputed by anyone. For example, what day of the week was October 5, 1997, what was the air temperature on a particular day, etc.

The characteristics of specific people cannot be recognized as well-known, since these are not facts, but subjective judgments.

Prejudicial facts - circumstances established by a court decision or verdict that has entered into legal force.

They are exempt from proof provided:

a) if the facts established by a decision in one civil case are not proven again in the proceedings of other civil cases, when the same legally interested persons participate in them;

b) if the prejudicial force of the court's verdict extends only to the court considering the case on the civil consequences of the actions of the defendant, and is limited by two provisions: first, whether certain actions were committed (the objective side of the corpus delicti), and secondly, whether they were committed by this person (the subject of the crime). On other issues, the verdict is not obligatory for the court in the civil procedure. Thus, the guilt of the convicted person and the amount of harm caused by the crime are not prejudged. The court is obliged to prove these circumstances, although they are defined in the judgment.

In order for the court to have legal grounds for exemption from proving prejudicial facts, it must request and have in the case copies of the relevant decision and verdict, documents on their entry into legal force (determination and resolution of higher courts, revising them in cassation or supervisory procedure).