having legal significance.

4.Task No. 2

The director of the welding equipment plant appealed to the labor and social issues committee of the regional administration with a request to ban the activities of the trade union created at the enterprise. At the same time, he referred to the fact that the trade union was not registered anywhere, which violated Art. 8 of the Law on Trade Unions. In addition, the director explained that the trade union organization was interfering with his competence, demanding coordination with it of certain local regulations containing labor law standards, and also prohibiting him from dismissing some workers.

What is the procedure for creating trade unions established by current legislation? Where and in what order are trade union organizations registered? Who and under what conditions can ban the activities of a trade union? Does the trade union organization go beyond its competence in making demands on the employer?

1.Objects of civil legal relations– those benefits regarding which subjects of law enter into legal relations with each other, or what their subjective rights and obligations are aimed at. There are no objectless legal relations. All benefits can be divided into material(objects of nature, things created by human labor and satisfying property interests) and intangible(honor, dignity, good name, works of science, art, etc.).

Types of objects of civil rights:

1) things, including money and securities, other property, including property rights; works and services;

2) information;

3) results of intellectual activity, including exclusive rights to them (intellectual property);

4) intangible benefits.

Depending objects are divided depending on their turnover on the:

1) objects withdrawn from circulation, the alienation of which is not permitted (these objects are expressly specified in the law). Such things can only be owned by the state and are transferred for use on the basis of administrative acts of the state and its competent authorities;

2) objects limited in circulation, which can belong only to certain participants in circulation or whose presence in circulation is permitted by special permission (to be determined in the manner prescribed by law). Can be acquired for use only according to certain rules established by law (for example, a permit to carry weapons);

3) freely negotiable objects that can be freely alienated through universal legal succession or in any other way. Depending things are divided from connection with the earth on the:

1) movable (not structurally connected to the ground);

2) immovable (firmly connected to the land: buildings, structures. An enterprise is recognized as real estate as a property complex, which includes all types of property intended for its activities, including land plots, buildings, structures, equipment, inventory, raw materials, products, claims, debts, trade name, trademarks, service marks).

Things are divided according to their physical properties on the:

1) consumable (during the process of use they lose their consumer qualities completely or in parts), non-consumable (when used for their intended purpose, they gradually depreciate over a long time: residential buildings, cars) things;

2) complex (consisting of many heterogeneous things that form a single whole: a car) and simple;

3) divisible (things that, when divided, do not change their economic purpose) and indivisible (when divided, they lose their original purpose);

4) things defined by generic characteristics and individually defined (things that have some inherent characteristics and properties);

5) the main thing (is economically or otherwise dependent on another thing (things), but can function without it) and accessory (intended to serve the main thing). Fruits (the result of the organic development of animate or inanimate things), products (obtained in the process of economic use of a thing), income (cash receipts from the participation of a thing in civil circulation).

2. The relations that develop between legal entities when combining their contributions (property, money, securities, etc.) and organizing joint activities to achieve a common goal are one of the types of civil legal relations. Since these obligations unite several or more participants, this agreement can be either bilateral or multilateral. Moreover, each participant acts simultaneously as a debtor and a creditor. For example, he may be obliged to transfer property and have the right to demand labor participation from the other party under a joint activity agreement

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

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

The following cases are considered in special proceedings:

1) on establishing facts of legal significance:

2) about the adoption of a child;

3) on declaring a citizen missing or declaring a citizen dead;

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

5) on declaring a minor fully capable (emancipation);

6) on recognition of a movable thing as ownerless and recognition of the right of municipal ownership to an ownerless immovable thing;

7) on the restoration of rights to lost bearer securities or order securities (call proceedings);

8) on forced hospitalization of a citizen in a psychiatric hospital and forced psychiatric examination;

9) on making corrections or changes in civil status records:

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

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

This list is not exhaustive. The procedure for considering and resolving cases of special proceedings is based on the general rules of claim proceedings, but due to the specifics of the cases This type of production has a number of features: 1) the procedural means of initiating special proceedings is not a lawsuit, but a statement, since the applicant does not have substantive claims against other persons;

2) in special proceedings there are no such institutions as abandonment of the claim, recognition of the claim, conclusion of a settlement agreement, change in the subject or basis of the claim, increase or decrease in the size of the claim, or going beyond the stated claim; the performance of procedural actions aimed at securing a claim, filing a counterclaim, etc. is excluded;

3) persons participating in special proceedings include the applicant and interested parties;

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

5) the emergence of a dispute about the law within the jurisdiction of the courts prevents the consideration of the case in a special proceeding and serves as a basis for leaving the application without consideration. After leaving the application without consideration, the interested person has the right to apply to the court to resolve the dispute through litigation.

Ticket number 3

Procedure and methods for creating legal entities.

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

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

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

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

Thus, the first category of the Code of Civil Procedure of the Russian Federation (Part 1 of Article 37) includes citizens who have reached the age of 18 years and, by virtue of this, have acquired full procedural capacity. However, the legislator also includes minors under the age of 18 in this category, while stipulating in Part 2 of Art. 37 of the Code of Civil Procedure of the Russian Federation, that they acquire this right from the time of marriage or declaration of their full legal capacity (emancipated).

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

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

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

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

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

The next feature of the rules of Part 4 of Art. 37 of the Code of Civil Procedure of the Russian Federation is that they give the court the right to decide on its own the issue of involving parents (adoptive parents), trustees, and other legal representatives of minors in the case (i.e., these rules are discretionary, unlike the rules of Part 3 of Article 37 Code of Civil Procedure of the Russian Federation). The issue is resolved similarly in cases where the court considers disputes related to transactions involving minors disposing of their earnings received under an employment contract, income of a member of a production cooperative or from carrying out entrepreneurial activities, as well as income (in the form of interest, discount, etc.), which can be received by minors with bank deposits, shares, etc.

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

Thus, a minor can become a participant in civil proceedings - in this case, he either takes independent participation as one of the parties (plaintiff, defendant or applicant), or acts as a participant in the judicial process in the protection of his rights, freedoms and interests by legal representatives.

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

Minor as a participant in civil proceedings

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

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

1. get acquainted with the case materials, make extracts from them and make copies. Actual familiarization with the case materials can occur both during the trial and outside it;
2. challenge. It should be noted that in accordance with Art. 54 of the Code of Civil Procedure of the Russian Federation, representatives have the same right;
3. provide evidence and participate in its research;
4. ask questions to other persons participating in the case, witnesses, experts and specialists;
5. file petitions, which allows a person participating in the case to bring his procedural requirements to the court in the established procedural form. Petitions filed outside of court proceedings must also be considered by the court in the manner established by procedural law;
6. give explanations to the court orally and in writing;
7. present your arguments on all issues arising during the trial, object to the requests and arguments of other persons participating in the case;
8. appeal court decisions;
9. use other procedural rights granted by law in civil proceedings.

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

The court is entrusted with the obligation to fully assist the parties participating in civil proceedings in the exercise of their rights, facilitate their implementation, and explain to the parties the consequences of committing or not performing certain procedural actions. This duty of the court is specified in Art. 20 of the Resolution of the Plenum of the Supreme Court of the Russian Federation of June 24, 2008 No. 11 “On the preparation of civil cases for trial.”

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

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

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

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

The procedural position of legal representatives is determined by such an institution of civil procedural law as representation, enshrined in Chapter. 5 Code of Civil Procedure of the Russian Federation. Legal representatives act in the process on behalf of the minor and in his interests, creating rights and obligations for him (Article 52 of the Code of Civil Procedure of the Russian Federation). However, taking into account the special status of a minor, the legislator establishes certain restrictions on the actions of the legal representative (Clause 3 of Article 52 of the Code of Civil Procedure of the Russian Federation). Such restrictions include the requirements of Art. 37 “Disposition of the property of a ward” of the Civil Code of the Russian Federation. Based on this, the court does not have the right to accept the legal representative’s refusal of the claim or his recognition of the claim in a property dispute, the party of which is a minor under guardianship or trusteeship, if there is no consent of the guardianship and trusteeship authority in the case before the court.

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

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

Before the start of trial in cases affecting the interests of minors who are represented by legal representatives, the judge, in preparation for the court hearing, checks the age of the minor, as well as the powers of their legal representatives or other persons who are granted this right by federal law.

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

The purpose of special proceedings is not to resolve an existing substantive legal dispute between the parties, but to establish the legal status of a citizen, property, facts of legal significance, etc. Civil procedural legislation does not exclude the participation of a minor in cases considered by the court as a special proceeding. In paragraphs 4 and 5 of Art. 262 of the Code of Civil Procedure of the Russian Federation stipulates a list of cases regarding minors that are considered in special proceedings - these are cases of restriction or deprivation of a minor aged 14 to 18 years of the right to independently dispose of their income and cases related to declaring a minor fully capable (emancipated).

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

1. about whether the minor has earnings, scholarships or other income;
2. the age of a minor;
3. facts of unreasonable disposal of a minor’s earnings, scholarship or other income.

These facts must be confirmed by witness testimony, copies of contracts and other evidence of the minor’s unreasonable use of their income (gambling, drinking alcohol and drugs, etc.). The application is not required to indicate the purpose of limiting or depriving a minor aged 14 to 18 years of the right to independently manage his earnings, scholarship or other income, since in this case the purpose has no legal significance.

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

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

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

Based on the results of considering the application on its merits, the court makes a decision to declare the minor fully capable (emancipated) or rejects the applicant’s request. Emancipation is declared from the day the court decision on emancipation comes into force.

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

The law does not exclude minors from the list of persons who can be summoned and questioned as witnesses. This obligation is enshrined in Art. 69 Code of Civil Procedure of the Russian Federation. However, in practice, minors are called upon to testify in a case only in cases of extreme necessity. When questioning minor witnesses and assessing their testimony, the court in each specific case is obliged to take into account their age and ability to correctly perceive facts and events that are important to the case, and give evidence about them that corresponds to reality.

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

Civil procedural law: lecture notes Gushchina Ksenia Olegovna

5. Types of civil proceedings

5. Types of civil proceedings

According to the Code of Civil Procedure of the Russian Federation, there is seven types of production: 1) writ proceedings. This is the only type of proceedings in which there are no two stages of civil proceedings (preparing the case for trial, consideration and resolution of the civil case on the merits). In writ proceedings, a court decision is not made, but a court order is issued - a court decision made by a single judge on the basis of an application for the collection of sums of money or for the recovery of movable property from the debtor;

2) claim proceedings. Claim proceedings are characterized by all stages of the civil process. Filing a claim by a person whose rights have been violated (plaintiff), which is sent to the alleged violator (defendant), involves the use of a means of protecting his violated or disputed right. Claim proceedings are initiated by filing a document - a statement of claim;

3) special production. In special proceedings there is no dispute of law. Facts and information of legal significance that cannot be obtained out of court are established in special proceedings. These are facts such as the adoption of a child, restriction of the legal capacity of citizens, recognition of a movable thing as ownerless, forced hospitalization of a citizen in a psychiatric hospital, etc.;

4) proceedings in cases arising from public legal relations. This proceeding is intended to resolve cases related to challenging regulatory legal acts in whole or in part; challenging decisions, actions (inactions) of state authorities, local governments, officials, state and municipal employees; protection of voting rights or the right to participate in a referendum of citizens of the Russian Federation;

5) proceedings in cases involving foreign persons. The peculiarity of this type of proceeding is that one of the parties to the civil process is a foreign person (foreign citizen, foreign organization, international organization);

6) proceedings in cases of challenging decisions of arbitration courts and issuing writs of execution for the forced execution of decisions of arbitration courts. By written agreement of the parties, a dispute about the right may be considered by an arbitration court. The decision of the arbitration court can be challenged in a court of general jurisdiction, which is a guarantee of protecting arbitration courts from arbitrariness;

7) proceedings related to the execution of court decisions and decisions of other bodies.

The Code of Civil Procedure of the RSFSR provided for only four types of production:

1) claim proceedings;

2) proceedings in cases arising from administrative-legal relations;

3) special production;

4) enforcement proceedings.

There were no writ proceedings in civil proceedings at that time. Proceedings on cases arising from public legal relations were part of proceedings on cases arising from administrative-legal relations. The civil procedural rights of foreign citizens and stateless persons were indicated in the special section “Civil procedural rights of foreign citizens and stateless persons, claims against foreign states, letters rogatory and decisions of foreign courts, international treaties and agreements.” It follows from the section that foreign persons and stateless persons have procedural rights and procedural responsibilities on an equal basis with Soviet citizens. At the same time, it is stipulated that restrictions on the procedural rights and freedoms of foreign citizens, enterprises, and organizations can be established only if there are restrictions on the rights and freedoms of Soviet citizens, enterprises, and organizations by the state whose citizenship is held by the foreign citizens. In the Code of Civil Procedure of the Russian Federation, challenging decisions of arbitration courts and issuing writs of execution for the forced execution of decisions of arbitration courts is not allocated to independent proceedings. Despite this, this type of production existed. According to clause 4, part 2, art. 141 of the Code of Civil Procedure of the RSFSR, “when preparing a case for trial, the judge explains to the parties their right to apply for resolution of the dispute to an arbitration or comrades’ court and the consequences of such an application.” There are three appendices to the Civil Procedure Code of the RSFSR. Appendix No. 3 is called “Regulations on Arbitration Courts,” which states that citizens can submit any dispute that arises between them to an arbitration court, with the exception of disputes arising from labor and family relations. An agreement to submit a dispute to arbitration must be concluded in writing. In Art. 17, 18, 19 provide that an arbitration decision that is not executed voluntarily can be enforced on the basis of a writ of execution issued by a people's court. When issuing a writ of execution, the judge checks whether the decision of the arbitration tribunal does not contradict the law and whether there was a violation of the rules established by the Regulations on Arbitration Courts when issuing it. A complaint or protest may be filed against a people's judge's refusal to issue a writ of execution within ten days from the date of refusal.

This text is an introductory fragment.

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TOPIC 5. JURISDICTION AND JURISDICTION OF CASES CONSIDERED IN CIVIL PROCEDURE

Article 2. Objectives of civil proceedings The objectives of civil proceedings are the correct and timely consideration and resolution of civil cases in order to protect violated or disputed rights, freedoms and legitimate interests of citizens, organizations,

Article 9. Language of civil proceedings 1. Civil proceedings are conducted in Russian - the state language of the Russian Federation or in the state language of the republic, which is part of the Russian Federation and on whose territory it is located

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Chapter 19 Initiation of civil proceedings § 1 Appeal to the court of an interested person In civil proceedings, the initiation of civil proceedings is the result of two procedural actions: an appeal by an interested person and acceptance by a judge

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4. Objectives of civil proceedings Art. 2 of the Civil Procedure Code states: “The objectives of civil proceedings are the correct and timely consideration and resolution of civil cases in order to protect the violated or disputed rights, freedoms and legitimate interests of citizens,

11. Main features of civil proceedings Justice in civil cases within the jurisdiction of courts of general jurisdiction is carried out: only by these courts according to the rules established by the legislation on civil proceedings; on the basis of equality before

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ARTICLE 9. Language of civil proceedings 1. Civil proceedings are conducted in Russian - the state language of the Russian Federation or in the state language of the republic that is part of the Russian Federation and on whose territory it is located

ARTICLE 2. Objectives of civil proceedings The objectives of civil proceedings are the correct and timely consideration and resolution of civil cases in order to protect violated or disputed rights, freedoms and legitimate interests of citizens, organizations,

The objectives of civil proceedings are the correct and timely consideration and resolution of civil cases in order to protect violated or disputed rights, freedoms and legitimate interests of citizens, organizations, rights and interests of the Russian Federation, constituent entities of the Russian Federation, municipalities, and other persons who are subjects of civil, labor or other legal relations. Civil proceedings should help strengthen law and order, prevent crime, and foster respect for the law and the court.

Four types of legal proceedings

The Civil Procedure Code of the Russian Federation provides for four types of legal proceedings:

• Order proceedings;
• Claim proceedings;
• Proceedings in cases arising from public legal relations;
• Special production.

Order proceedings

Writ proceedings are so-called indisputable and documented proceedings. The basis of writ proceedings is a court order, which is at the same time a court decision (made by a single judge) on the collection of sums of money or on the recovery of movable property from the debtor, as well as a writ of execution.

Cases regarding the issuance of a court order fall under the jurisdiction of magistrates.

An application for a court order must be submitted in writing and must contain:

• name of the claimant, his place of residence or location;
• name of the debtor, his place of residence or location;
• the claimant's claim and the circumstances on which it is based;
• documents confirming the validity of the claimant's claim;
• list of attached documents.

In the case of a claim for movable property, the application must indicate the value of this property. An application for a court order is signed by the claimant or his representative having the appropriate authority. The application submitted by the representative must be accompanied by a document certifying his authority.

A court order is issued within five days from the date of receipt of the relevant application to the court, without trial or summons of the parties.

Claim proceedings

Claim proceedings are the main type of civil proceedings. It is mainly based on a dispute about law. The main difference between a claim proceeding and a writ proceeding is its adversarial nature, i.e. the trial takes place in the form of a dispute between the parties before the court. Each side defends its own and challenges the other side's claims.

The claim form of protection of rights exists not only in civil proceedings; its main features are also inherent in the arbitration process.

The statement of claim is submitted to the court in writing and must contain:

• name of the court to which the application is filed;
• the name of the plaintiff, his place of residence or, if the plaintiff is an organization, its location, as well as the name of the representative and his address, if the application is submitted by a representative;
• the name of the defendant, his place of residence or, if the defendant is an organization, its location;
• what is the violation or threat of violation of the rights, freedoms or legitimate interests of the plaintiff and his demands;
• the circumstances on which the plaintiff bases his claims and evidence supporting these circumstances;
• the price of the claim, if it is subject to assessment, as well as the calculation of the collected or disputed amounts of money;
• information about compliance with the pre-trial procedure for contacting the defendant, if this is established by federal law or provided for by the agreement of the parties;
• list of documents attached to the application.

The statement of claim must be accompanied by:

• its copies in accordance with the number of defendants and third parties;
• a document confirming payment of the state duty;
• power of attorney or other document certifying the authority of the plaintiff’s representative;
• documents confirming the circumstances on which the plaintiff bases his claims, copies of these documents for defendants and third parties, if they do not have copies;
• the text of the published normative legal act in case of challenge;
• evidence confirming the implementation of the mandatory pre-trial dispute resolution procedure, if such a procedure is provided for by federal law or agreement;
• calculation of the recovered or disputed amount of money, signed by the plaintiff, his representative, with copies in accordance with the number of defendants and third parties.

By virtue of Article 132 of the Civil Code of the Russian Federation, civil cases are considered and resolved by the court before the expiration of two months from the date of receipt of the application to the court, and by the magistrate before the expiration of a month from the date of acceptance of the application for proceedings. Cases regarding reinstatement at work and collection of alimony are considered and resolved before the end of the month.

However, you should be prepared for the fact that in practice these deadlines are not observed due to the workload of the courts and the complexity of the cases being considered.

Cases arising from public legal relations

Cases arising from public legal relations. Proceedings in such cases are an independent type of civil proceedings aimed at exercising judicial control over the legality of the actions of state bodies and organizations in relation to citizens.

The court considers the following cases arising from public legal relations:

• on challenging regulatory legal acts;
• on challenging decisions and actions (inaction) of state authorities, local governments, officials, state and municipal employees;
• on the protection of voting rights or the right to participate in a referendum of citizens of the Russian Federation;
• other cases arising from public legal relations and referred by federal law to the jurisdiction of the court.

The court begins to consider a case arising from public legal relations on the basis of an application from an interested person.

The application must indicate which decisions, actions (inaction) should be recognized as illegal, what rights and freedoms of the person are violated by these decisions, actions (inaction).

An appeal by an interested person to a higher authority or official is not a prerequisite for filing an application with the court.

Refusal to accept an application or termination of proceedings in a case arising from public legal relations:

• if, when filing an application with the court, it is established that there is a dispute about the law within the jurisdiction of the court, the judge leaves the application without progress and explains to the applicant the need to file a statement of claim;
• in case of violation of the rules of jurisdiction of the case, the judge returns the application;
• if there is a court decision that has entered into legal force, taken on an application regarding the same subject.

The burden of proving the legality of contested decisions, actions (inactions) of bodies or officials rests not with the applicant, but with the respondents.

For this category of cases, it is important to comply with the statute of limitations, i.e. the deadline for filing such an application in court. So, in particular, an application to challenge decisions and actions (inaction) of bodies and officials, as well as an application to protect electoral rights or the right to participate in a referendum, can be filed within three months from the day the citizen became aware of a violation of his rights and freedom.

Missing the three-month deadline for filing an application with the court is not grounds for the court to refuse to accept the application. The reasons for missing a deadline are clarified at a preliminary court hearing or court hearing and may be grounds for refusing to satisfy the application.

Special production

Special proceedings are a type of civil proceedings that differ from claims in the absence of a dispute about the law and, as a consequence of this, the absence of disputing parties with opposing legal interests. Special proceedings are characterized as non-claim, unilateral proceedings.

In special proceedings, the court considers the following cases:

• on establishing facts of legal significance;
• about the adoption of a child;
• on declaring a citizen missing or declaring a citizen dead;
• on limiting the legal capacity of a citizen, on declaring a citizen incompetent, on limiting or depriving a minor aged fourteen to eighteen years of the right to independently manage their income;
• on declaring a minor fully capable (emancipation);
• on recognizing a movable thing as ownerless and recognizing the right of municipal ownership to an ownerless immovable thing;
• on the restoration of rights to lost bearer securities or order securities (call proceedings);
• on forced hospitalization of a citizen in a psychiatric hospital and forced psychiatric examination;
• on making corrections or changes in civil registration records;
• on applications for notarial acts performed or refusal to perform them;
• on applications for the restoration of lost judicial proceedings.

The court considers cases of special proceedings with the participation of applicants and other interested persons. If, when filing an application or considering a case in a special proceeding, it is established that there is a dispute about the right within the jurisdiction of the court, the court issues a ruling to leave the application without consideration, in which it explains to the applicant and other interested parties their right to resolve the dispute in the manner of adjudication proceedings.

2) claim proceedings. Claim proceedings are characterized by all stages of the civil process. Filing a claim by a person whose rights have been violated (plaintiff), which is sent to the alleged violator (defendant), involves the use of a means of protecting his violated or disputed right. Claim proceedings are initiated by filing a document - a statement of claim;

• its copies in accordance with the number of defendants and third parties;
• a document confirming payment of the state duty;
• power of attorney or other document certifying the authority of the plaintiff’s representative;
• documents confirming the circumstances on which the plaintiff bases his claims, copies of these documents for defendants and third parties, if they do not have copies;
• the text of the published normative legal act in case of challenge;
• evidence confirming the implementation of the mandatory pre-trial dispute resolution procedure, if such a procedure is provided for by federal law or agreement;
• calculation of the recovered or disputed amount of money, signed by the plaintiff, his representative, with copies in accordance with the number of defendants and third parties.

The concept of civil proceedings, types of legal proceedings and stages of civil proceedings

Each civil case goes through certain stages during its consideration; in science they are called law enforcement cycles or stages of the civil process. The stage of civil proceedings is an integral part of legal proceedings, characterized by the commonality of the immediate procedural goal. Today, the following stages of civil proceedings are distinguished:

1) writ proceedings. This is the only type of proceedings in which there are no two stages of civil proceedings (preparing the case for trial, consideration and resolution of the civil case on the merits). In writ proceedings, a court decision is not made, but a court order is issued - a court decision made by a single judge on the basis of an application for the collection of sums of money or for the recovery of movable property from the debtor;

Types of proceedings in civil proceedings

2) claim proceedings. Claim proceedings are characterized by all stages of the civil process. Filing a claim by a person whose rights have been violated (plaintiff), which is sent to the alleged violator (defendant), involves the use of a means of protecting his violated or disputed right. Claim proceedings are initiated by filing a document - a statement of claim;

Legal consultation

A type of civil proceedings is a set of procedural actions of the court established by the norms of civil procedural law, arising from certain substantive, public or procedural legal relations themselves, aimed at achieving a specific goal of considering and resolving legal disputes, establishing or recognizing legal facts and restoring violated rights.

Types of civil proceedings

3) special production. In special proceedings there is no dispute of law. Facts and information of legal significance that cannot be obtained out of court are established in special proceedings. These are facts such as the adoption of a child, restriction of the legal capacity of citizens, recognition of a movable thing as ownerless, forced hospitalization of a citizen in a psychiatric hospital, etc.;

Types of proceedings in civil proceedings

1. clarifies the circumstances of the disputed legal relationship,
2. indicates to the parties the need to provide certain additional evidence or assists in obtaining it,
3. determines the subject composition of the process,
4. takes measures to reconcile the parties.

Types of proceedings in civil proceedings

Cases considered in civil proceedings are characterized by diversity and differences, in particular in terms of the complexity of proving the circumstances of the case. There are certain cases that can be resolved on the basis of the evidence presented, without a trial on the merits. For example, if a child is left to live with his mother after a divorce, the father does not pay alimony and does not dispute paternity, then the collection of alimony does not require court proceedings; written evidence confirming the right of a minor child to receive alimony from his father is sufficient. But not all cases of alimony collection can be as “transparent”. The matter becomes seriously complicated if the defendant, for example, is already paying amounts of money under other writs of execution or is challenging his paternity. Here, to establish all the circumstances of the case, it is impossible to do without a court hearing.

Types of proceedings in civil proceedings

Unfortunately, in Russia the legislator has not bothered with the systematic nature of procedural guarantees of access to justice. A well-known example of recent years: originally part 3 of Art. 89 of the Code of Civil Procedure provided the judge with discretionary authority to exempt a citizen from paying state fees, taking into account his property status. However, Federal Law No. 127-FZ *(86) It has been established that the amount of state duty, benefits for paying state duty when applying to the courts, the grounds and procedure for the return of state duty, deferment or installment payment of state duty are regulated by the Tax Code. In this regard, Art. 89, 90, 92, 93 Code of Civil Procedure. Article 89 of the Civil Procedure Code, as amended by the above-mentioned federal law, allows for the provision of benefits for the payment of state duties only in cases established by the legislation of the Russian Federation on taxes and fees. As a result, the judge (court) lost the right, at his discretion, to exempt from payment of state duty, based on the property status of the citizen. Procedural guarantees in their essence were disavowed by the procedural norm of the non-procedural law - the Tax Code. This approach does not correspond to the absoluteness of the constitutional right to judicial protection and violates free access to justice. The Constitutional Court of the Russian Federation recognized that the provisions of Art. 333.36 in conjunction with paragraph 2 of Art. 333.20 Tax Code and art. 89 of the Civil Procedure Code, which do not allow courts of general jurisdiction and magistrates to make, at the request of individuals, decisions on exemption from payment of state duty, if another reduction in the amount of state duty, granting a deferment (installment plan) for its payment does not provide unhindered access to justice, due to legal positions, expressed by the Constitutional Court of the Russian Federation in Resolutions of May 3, 1995 N 4-P, of July 2, 1998 N 20-P, of April 4, 1996 N 9-P, of March 12, 2001 N 4-P, definitions of May 12, 2005 N 244-O and July 13, 2006 N 272-O, do not comply with Art. 19 (parts 1 and 2) and 46 (parts 1 and 2) of the Constitution of the Russian Federation, and therefore lose force and cannot be applied by courts, other bodies and officials *(87) .

Types of civil proceedings

· 6) on recognition of a movable thing as ownerless and recognition of the right of municipal ownership to an ownerless immovable thing; 7) on the restoration of rights to lost bearer securities or order securities (call proceedings); 8) on forced hospitalization of a citizen in a psychiatric hospital and forced psychiatric examination; 9) on making corrections or changes in civil status records; 10) on applications for notarial acts performed or refusal to perform them; 11) on applications for the restoration of lost judicial proceedings (Article 262 of the Code of Civil Procedure).

Types and characteristics of proceedings in civil proceedings

6) proceedings in cases of challenging decisions of arbitration courts and issuing writs of execution for the forced execution of decisions of arbitration courts. By written agreement of the parties, a dispute about the right may be considered by an arbitration court. The decision of the arbitration court can be challenged in a court of general jurisdiction, which is a guarantee of protecting arbitration courts from arbitrariness;

Lawyer's Notes

The list of Article 245 is not exhaustive. The legislator uses the wording “other cases classified by the Federal Law as public proceedings” - cases of administrative offenses. The question of the presence or absence of a dispute about law in this proceeding is debatable. “Parties” are referred to as the applicant and other interested parties. Public proceedings are initiated by filing an application.

Types of proceedings and stages in civil proceedings

Each of the identified types of proceedings has specific features of their consideration in court. Therefore, under the type of proceedings in civil proceedings we understand a special order (procedure) for considering certain categories of legal cases; the procedure for proceedings in civil cases, regulated by the norms of civil procedural law, which is determined by a system of interconnected civil procedural rights and obligations and civil procedural actions by which they are implemented by subjects - the court and participants in the process; determined by the nature and specificity of the substantive right or legally protected interest that is subject to protection; procedural procedure for initiating, considering, resolving a certain group of civil cases.

Civil process

Civil proceedings usually end with the execution of a court decision. Therefore, the sixth stage is proceedings related to the execution of court decisions (enforcement proceedings). This stage occurs in cases where, in order to enforce a court order, it is necessary to ensure the use of special enforcement measures. With normal development of the process, this stage is the final one.

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