Who should pay for the expert examination in court? Legal costs: The Supreme Court clarified who will pay for the examination. The examination is paid from the budget
A selection of the most important documents on request Payment forensics (regulations, forms, articles, expert consultations and much more).
Document forms: Payment for forensic examination
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Form: Vessels Report general jurisdiction on the amount of damage from crimes, the amount of material penalties for state revenue, the number of decisions made to pay procedural costs from funds federal budget and appointment of examinations. Form N 4 (semi-annual)
(Order of the Judicial Department at the Supreme Court of the Russian Federation dated 04/11/2017 N 65 (as amended on 05/30/2019))
Judicial practice: Payment for forensic examination
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5.1.1. If several persons participating in the case have agreed to conduct an examination, these persons, in the absence of another agreement between them, are obliged to deposit into the deposit account of the court in equal parts the sums of money to be paid to the experts, except in cases where the examination is carried out at the expense of the relevant budget (position of the Supreme Arbitration Court RF) >>>
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Position of the Supreme Arbitration Court of the Russian Federation: If several persons participating in the case have agreed to conduct an examination, these persons, in the absence of another agreement between them, are obliged to deposit into the deposit account of the court in equal parts the sums of money to be paid to the experts, except in cases where the examination is carried out at the expense of the relevant budget
Resolution of the Plenum of the Supreme Arbitration Court of the Russian Federation dated April 4, 2014 N 23
Applicable standards: Part 1, Art. 108, part 4 art. 110 Arbitration Procedure Code of the Russian Federation
Articles, comments, answers to questions: Payment for forensic examination
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1.3. Conclusion from judicial practice: If the company does not agree with the calculation of the actual value of the share made by the withdrawing participant, and there is no other assessment of the value of the company’s assets, the court must invite the parties to appoint an examination to determine the actual value of the share to be paid to the withdrawing participant of the company.
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Based on the above grounds for recognition of the transaction for the sale and purchase of goods concluded between the Hermes company and entrepreneur Yu.I. Retueva. invoice dated 03/10/2014 N 351, and transactions for transfer from the debtor’s account according to payment order dated 03/07/2014 N 114 cash in the amount of RUB 359,870. in favor of entrepreneur Yu.I. Retueva the courts did not have any invalidity. Appealed judicial acts in the relevant part, including distribution of expenses for payment of the cost of forensic examination and payment state duty, are subject to cancellation (parts 1, 2 of article 288 of the Arbitration Procedure Code Russian Federation)..."
Regulatory acts: Payment for forensic examination
12. In the event of failure to comply with the court’s requirement for the expert to submit his report to the court within the period established by the ruling on the appointment of the examination, in the absence of a reasoned message from the state forensic institution or expert about the impossibility of conducting the examination in a timely manner or about the impossibility of conducting the examination for the reasons specified in parts 7 and 8 of this article, as well as in case of failure to comply with this requirement due to the absence of a document confirming the advance payment of the examination, the court shall impose a court fine on the head of the state forensic institution or the expert guilty of such violations in the manner and amount established by Articles 122 and 123 of this Code.
An expert or a forensic institution does not have the right to refuse to conduct an examination assigned to him within the time period established by the court, citing the refusal of the party to pay for the examination before it is carried out. If a party refuses to pre-pay for the examination, the expert or forensic institution is obliged to conduct an examination appointed by the court and, together with an application for reimbursement of expenses incurred, send the expert's opinion to the court with documents confirming the costs of conducting the examination, for the court to decide the issue of reimbursement of these expenses to the appropriate party, taking into account the provisions of part one of Article 96 and Article 98 of this Code.
If issues arise during the consideration of the case that require special knowledge in various areas science, technology, art, craft, court in accordance with Part 1 of Art. 79 of the Code of Civil Procedure of the Russian Federation may order an examination. The court may order an additional examination on own initiative or at the request of the parties to the proceeding.
The court issues a ruling on the appointment of an examination; the requirements for its content are established by Art. 80 Code of Civil Procedure of the Russian Federation. The determination to order an examination must contain: the name of the court; date of appointment of the examination; names of the parties in the case under consideration; name of the examination; facts for confirmation or refutation of which an examination is appointed; questions posed to the expert; surname, name and patronymic of the expert or the name of the expert institution entrusted with carrying out the examination; materials and documents presented to the expert for comparative research; special conditions handling them during research, if necessary; name of the party that pays for the examination.
In cases where the court ordered a forensic examination in the case and the case file contains an expert opinion, the court, on the basis of the provisions of Art. 87 of the Code of Civil Procedure of the Russian Federation, has the right to order either an additional or repeated examination. The difference between these examinations in accordance with the requirements of Art. 87 of the Code of Civil Procedure of the Russian Federation is that an additional examination is carried out in the event of insufficient clarity or incompleteness of the expert’s conclusion and its implementation is entrusted to the same or another expert. A repeat examination is ordered on the same issues, due to doubts that have arisen about the correctness or validity of the previously given conclusion, or the presence of contradictions in the conclusions of several experts. The re-examination is entrusted to another expert institution or other experts.
1. By general rule, provided for in Part 1 of Art. 96 of the Code of Civil Procedure of the Russian Federation, amounts of money to be paid to experts are first deposited into the bank account of the department (department) of the Judicial Department in the constituent entities of the Russian Federation by the party that has submitted the corresponding request. If this request is made by both parties, the required amounts are paid by the parties in equal parts.
Provisions of Part 2 of Art. 96 of the Code of Civil Procedure of the Russian Federation provides for reimbursement of expenses for paying for the examination from the federal budget in cases where the examination was ordered on the initiative of the court.
If it is necessary to conduct a forensic examination, if the parties do not file a petition for its appointment and the examination is appointed at the initiative of the court, the court should discuss payment issues before its appointment, in order to eliminate possible complications during the conduct of the examination appointed by the court. Payment for the examination by the parties and when it is appointed on the initiative of the court, with the voluntary consent of the parties to pay for the examination, is not excluded.
There is no need to involve the Office of the Judicial Department at the Supreme Court of the Russian Federation in the region to participate in the consideration of the case when deciding on the payment for the examination.
In cases where the examination is carried out on the initiative of a magistrate, payment of expenses is made from the budget of a constituent entity of the Russian Federation.
When ordering an examination at the initiative of the court, the court should reflect this in the ruling on the appointment of the examination.
2. From the provisions of Part 3 of Art. 96 of the Code of Civil Procedure of the Russian Federation it follows that the court, as well as the magistrate, can exempt a citizen, taking into account his property status, from paying for the examination. The Civil Procedure Code of the Russian Federation does not provide for an exemption from paying for the examination of organizations.
Courts should take into account that the current legislation provides for benefits for the payment of state fees; the current legislation does not provide for benefits for reimbursement of expenses related to the costs of the case. In accordance with Part 3 of Art. 96 of the Code of Civil Procedure of the Russian Federation the right to exempt a citizen from reimbursement of expenses provided for in Part 1 of Art. 96 of the Code of Civil Procedure of the Russian Federation, or to reduce their size, based on his property status, belongs to the court.
Courts should take into account that Part 3 of Art. 96 of the Code of Civil Procedure of the Russian Federation provides for the possibility of not only exempting a citizen from paying court costs, but also reducing them, and therefore, before releasing a citizen from paying for an examination, the court (judge) should discuss the possibility of reducing the amount payable for the examination.
When exempting citizens from paying the costs of conducting an examination, the courts, in rulings on the appointment of an examination, erroneously refer to Part 2 of Art. 96 of the Code of Civil Procedure of the Russian Federation, although in this case it is necessary to refer to Part 3 of Art. 96 Code of Civil Procedure of the Russian Federation.
A court can exempt a citizen from paying for an examination only upon his/her petition, but not on its own initiative.
When assigning the costs of paying for the examination to the appropriate budget, in the operative part of the ruling, the court and the magistrate should indicate:
Payment for the examination should be made from the federal budget (budget of a constituent entity of the Russian Federation).
3. Courts should keep in mind that a prosecutor who applies to the court with a statement in defense of the rights, freedoms and legitimate interests of citizens, an indefinite number of persons or interests of the Russian Federation, constituent entities of the Russian Federation, municipalities is exempt from court costs, including the cost of paying for an examination. on the basis of the provisions of Part 2 of Art. 45 Code of Civil Procedure of the Russian Federation, as well as authorities state power, organs local government, organizations or citizens in cases provided for by law, filing a petition in court in defense of the rights, freedoms and legitimate interests of other persons or in defense of the rights, freedoms and legitimate interests of an indefinite number of persons due to the requirements of Part 2 of Art. 46 Code of Civil Procedure. In this case, expenses are reimbursed from the corresponding budget.
Payment of expenses for conducting an examination in civil process is carried out not at the expense of the state, but at the expense of the participating parties. This gives rise to a lot of controversy regarding reimbursement.
According to current legislation, state funding of forensic examinations in civil proceedings is not provided. The examination is carried out at the expense of the participants in the process. However, in practice, it often happens that one of the parties avoids paying the costs of the examination, and these amounts can be very significant, then the issue of reimbursement of the costs of the examination becomes relevant.
Article 88 of the Code of Civil Procedure provides for payment of the examination fee by the party filing the petition; if the petition was submitted by both parties to the process at once, the amount is divided equally. The same applies to the situation when a forensic examination is appointed at the initiative of the court. Payment is made in advance, before the start of the examination. This article also specifies categories of persons who are exempt from paying court costs. But this only applies to prepayment. The final division of costs occurs after sentencing. Thus, if the claim is fully satisfied, the costs of the examination are fully reimbursed by the defendant. If the claim is partially satisfied, the defendant pays for the examination in proportion to the part that was refused. If the claim is not satisfied in full, the costs fall on the plaintiff.
But everything is simple only in theory; in practice, often disputes over the distribution of expenses literally lead the matter to a dead end: one of the parties refuses to pay its part of the advance payment, and the second refuses to pay for the other. As a result, the expert, having never received an advance payment, simply returns the case to the court without carrying out any expert actions. You can find many civil cases that are stuck at the stage of examination; in this state they can exist for several years. Of course, this has a negative impact on subsequent trial, since over time, many materials and documents submitted for examination may disappear or lose their relevance. To avoid such situations, the state is forced to take extreme measures: it forces people to pay for the examination by force. This can be done using a writ of execution, then, for example, expenses will simply be deducted from the salary of the participant in the process and transferred to the account of the expert institution. If the participant in the process does not have a regular income, or is legal entity, bailiffs may come to see him. However, such extreme measures may not be applied in all cases. If it is impossible to collect an advance payment from the parties, the court can also use part 3 of Article 74 of the Code of Civil Procedure and interpret such behavior of the parties as evasion of participation in the examination. In this case, the court may recognize the fact, for the clarification of which an expert examination was appointed, as established or refuted without conducting an examination. I think this rule should be applied only in cases where there has been a deliberate evasion of payment for an examination without a good reason. If a party does not pay for the examination for a good reason, for example, due to a banal lack of funds, applying such a rule will not be entirely correct, because it does not contribute to the restoration of justice, which any legal proceeding strives for.
The problem of reimbursement for expert examination costs in civil proceedings is quite acute, and extreme measures often have to be taken. This can be avoided by creating special reserve funds in expert institutions. In this case, if the parties refuse to pay for the examination, it can be financed from this fund. When a decision is made on the case, the funds will be reimbursed from those found guilty. However, here the question arises: how to create such a fund? Probably, each expert institution should be able to independently answer this question, based on its own financial situation.
As is known, when ordering a forensic examination, the court issues an appropriate ruling, which, in addition to other information, indicates the person who is entrusted with the obligation to pay for the examination. There are often cases when the parties interfere with the examination by not paying for it, despite reminders about this from the expert institution. In previous practice, such court cases, in which payers evaded the obligations imposed on them by the court, were returned to the court due to their non-payment. Not long ago in the main regulations regulating forensic activities, amendments have been introduced stating that an expert institution has no right to refuse to conduct an examination due to non-payment.
Procedure for paying for forensic examination: who, when and how much?
However, according to Art. 96 of the Code of Civil Procedure of the Russian Federation, all sums of money that must be paid to experts are first deposited by the party into the account of the court, from which they are subsequently transferred to the experts. Unfortunately, this practice, despite the relevant instructions in the law, is not currently applied. The courts in the ruling indicate only the paying party; further problems that arise are resolved by the expert institution and the relevant party independently.
Not wanting to part with their savings, some individuals demand that an expert institution draw up an agreement, and some institutions comply with such a dubious demand. The existence of any contractual relations between the expert institution and the party to the case is unacceptable, since the contract gives rise to mutual obligations that the expert institution cannot have before the party. The party in this case acts only as the payer of the examination, and not its customer. The customer of the examination is the court, to which the expert institution is obliged to provide the examination. The party only makes a payment; its demands to conduct an inspection of the object of examination at the time specified by it, to carry out the examination within the time frame required by it, to inform it of the results of the research carried out are illegal and cannot be satisfied. Moreover, the expert is independent of the parties to the case, which also confirms the inadmissibility of drawing up any agreement.
Let's consider another option for paying for forensic examination, which is most valued by the courts. This option is to conduct an examination without advance payment, and collect it from the outside based on writ of execution. The convenience and acceptability of this method by the courts is obvious, because the expert institution will not wait for payment and will carry out the examination as soon as the determination of its purpose and all the necessary materials are received by the institution. But this method is considered the most risky both for the expert institution and, surprisingly, for the payer. Let us clarify this statement. The expert institution pays the expert wages, but will receive payment for the examination after some time, which can be several months or a year. If many cases are assigned with similar payment schemes, the expert institution will have nothing to pay the expert the amount he earned. Another risk is the fact that the party will not be able to pay for the examination even on the basis of a writ of execution due to lack of funds. Pre-payment or pre-escrow would have prevented this problem from occurring. The risks for the payer are justified by the fact that when issuing an invoice for advance payment for the examination, he is already notified of the required amount, and if it is too high, he may apply to the court with a request to appoint an examination to another institution, explaining the high cost or lack of he has the required amount. In case of collection of payment for the examination after it has been carried out on the basis of an application from an expert institution, the amount specified in this application may be increased many times over. Some expert institutions take advantage of the party’s obligation to pay, especially when a forensic examination has already been carried out and sending the case materials without execution, followed by the court’s appointment of another expert institution, is impossible. Thus, as a result of the abuse of their rights by certain expert institutions, under such a payment scheme expert work the parties will be forced to incur significant costs that they could not even imagine.
Based on what has been described, the most acceptable method of payment is the preliminary deposit of funds for the examination to the court’s account with the subsequent transfer of this amount to the account of the expert institution immediately after the court receives the expert’s opinion, especially since this method of payment for the expert’s services is provided for by law.
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Payment for forensic examination
Indeed, some issues in medical disputes can only be resolved through a forensic medical examination. This is due to the fact that the judge resolving such a dispute does not have special knowledge in the field of medicine, and, therefore, cannot and should not evaluate many circumstances, guided only by his inner conviction and the knowledge he has.
For example, the court can independently evaluate the testimony of witnesses about the nature of the injuries, the presence or absence of pain in the plaintiff, and other harmful consequences. But the court cannot independently assess the correctness of the diagnosis or the presence of defects in the provision of medical care. To resolve such issues, the court relies on the conclusions of experts.
According to Part 1 of Art. 79 of the Code of Civil Procedure of the Russian Federation, when issues arise during the consideration of a case that require special knowledge in various fields of science, technology, art, craft, the court appoints an examination. The examination may be entrusted to a forensic institution, a specific expert, or several experts.
Based on the analysis of Articles 35 and 79 of the Code of Civil Procedure of the Russian Federation, it becomes clear that a forensic examination can be ordered at the request of one of the parties to the dispute, as well as at the initiative of the court.
By virtue of Art. 80 of the Code of Civil Procedure of the Russian Federation in the ruling on ordering an examination, among other things, the court indicates the name of the party that pays for the examination.
Based on general practice consideration of civil cases, the court assigns payment for the examination to the party filing a petition to appoint an examination.
However, when considering claims from citizens for compensation for material and moral damage as a result of poor-quality medical care, as well as other claims arising from disputes between citizens and medical organizations, there are specific features related to payment for the examination.
Citizens seeking medical help in medical institutions, act for personal needs, for purposes related to their personal health or the health of loved ones.
In accordance with the Preamble of the Law of the Russian Federation “On the Protection of Consumer Rights” consumer- a citizen who intends to order or purchase, or who orders, purchases or uses goods (work, services) exclusively for personal, family, household and other needs not related to business activities;
executor- an organization, regardless of its organizational and legal form, as well as an individual entrepreneur performing work or providing services to consumers under a paid contract.
Thus, based on the norms of the Law of the Russian Federation “On the Protection of Consumer Rights,” citizens seeking medical care in medical institutions are consumers, and, therefore, their relationships with medical organizations should be regulated by the Law of the Russian Federation “On the Protection of Consumer Rights.”
The same position is taken by Supreme Court RF.
By virtue of clause 9 of the Resolution of the Plenum of the Supreme Court of the Russian Federation dated June 28, 2012 N 17 “On the consideration by courts of civil cases in disputes regarding the protection of consumer rights”, legislation applies to relations in the provision of medical services to citizens provided by medical organizations within the framework of voluntary and compulsory health insurance on the protection of consumer rights.
Thus, it does not matter within the framework of what particular relationship a citizen applied for medical help, whether it was a citizen’s request for compulsory medical insurance policy, for voluntary medical insurance (VHI), within the framework of the provision of paid services by a medical organization, the norms of the Law of the Russian Federation “On the Protection of Consumer Rights” are applied.
According to paragraph 28 of the Resolution of the Plenum of the Supreme Court of the Russian Federation dated June 28, 2012 N 17 “On consideration by courts of civil cases in disputes regarding the protection of consumer rights,” when resolving consumer claims, it is necessary to take into account that burdenproof circumstances exonerating from liability for non-fulfillment or improper fulfillment of an obligation, including for causing harm, lies with the seller (manufacturer, performer, authorized organization or authorized individual entrepreneur, importer) (clause 4 of article 13, clause 5 of article 14, clause 5 of article 23.1, clause 6 of article 28 of the Law on the Protection of Consumer Rights, article 1098 of the Civil Code of the Russian Federation).
Consequently, even if the plaintiff files a petition to order a forensic medical examination, payment for the examination should be borne by the medical organization as the provider of the service.
At the same time, courts often seek to distribute the responsibility for paying for expert services between the parties. In these cases, the specific circumstances of the case should be taken into account: the capabilities of the parties, the time factor, and other circumstances.
It should also be taken into account that when conducting repeated, additional examinations at the request of a citizen, payment is assigned to him, without taking into account the above provisions.
An interesting situation may arise when neither party to the dispute files a request for a forensic examination.
There are cases when each party provides evidence of its legal position, insists on satisfaction or refusal of satisfaction claims, but does not pose the question of forensic examination to the court.
In this case, the court, in order to establish the truth in the case, needs to conduct a forensic examination of the case.
In this case, guided by Art. 79 of the Code of Civil Procedure of the Russian Federation, the court can independently raise the question of ordering a forensic examination.
In this case, the question is about the side, cost bearer for examination is decided individually. But if each party refuses to bear the corresponding costs, the court may assign the obligation to pay for the forensic examination to the Judicial Department.
In a similar way, that is, conducting an examination at the expense of the Judicial Department, the issue can be resolved when the plaintiff is unable to pay for the examination (disability, lack of appropriate income, low income).
According to Art. 98 of the Code of Civil Procedure of the Russian Federation, the court orders the party in whose favor the court decision to reimburse the other party for all legal expenses incurred in the case, except for the cases provided for in part two of Article 96 of this Code. If the claim is partially satisfied, the legal costs specified in this article are awarded to the plaintiff in proportion to the amount of the claims satisfied by the court, and to the defendant in proportion to the part of the claims that were denied to the plaintiff.
The law also includes the costs of conducting forensic examinations as legal expenses.
Thus, if during the consideration of the case, the costs of paying for the examination were assigned to the medical organization, but the court decided to refuse to satisfy the plaintiff’s claim, then these costs must be recovered from the plaintiff.
Payment for forensic examination in civil proceedings
Who pays for the expert examination appointed by the arbitration court?
In certain incidents, only an examination can become the basis of the evidence base. As you understand, many additional questions arise. Firstly, who pays for the court-ordered examination?, and is it possible to do an independent examination yourself. Secondly, in what cases is such an examination necessary?
Civil process, moment of payment for examination
We will try to consider all the issues with you and assess in detail the prospects of cases without an examination and with documents confirming your case, signed by experienced experts.
Who exactly pays for the court-ordered examination?
It must immediately be said that if the appointment of an examination occurs on the basis of a court decision and on the initiative of the court, then in this case all actions will be paid for from the federal budget. This is especially common during arbitration disputes under construction contracts, and a little less often during arbitration disputes under supply contracts.
Accordingly, if neither party filed a petition to appoint an examination, but it was appointed through the initiative of the court, then in this case court within 10 days after the decision is made, carries out the procedure for setting the date of the examination. Please note that such a decision can be appealed to a higher court.
Thus, it becomes obvious that if a forensic examination is ordered by the court on its own initiative, then you should not worry about the fact that you will have to make any payments. At the same time, you need to remember that an expert assessment can become irrefutable evidence.
Expertise of the parties
Each party to the process must initially do everything possible to prove its case:
- Providing witnesses;
- Providing expert assessment;
- Providing various evidence.
That is, an expert assessment can be carried out without a court decision; as a rule, lawyers in St. Petersburg insist on its implementation. You independently contact organizations that have all the necessary licenses to conduct expert analysis, and receive necessary documents. In this case we are talking about an independent examination. Here you need to remember that you pay for such an examination yourself. But, in statement of claim you can ask the court to recover the funds spent on expert assessment and legal assistance from the defendant if you win the case.
The examination can be ordered by the court, in which case it is paid for from the federal budget. At the same time, no one can forbid you to conduct an examination yourself, as additional evidence that you are right. In this case, you pay for all expert services. If the court decides to satisfy your claim, then all funds can be recovered from the defendant.
The issue of examination is very important, therefore, if you are confident that you are right, then do not skimp on carrying it out, since after receiving a decision, you may actually have an excellent opportunity to win the case.
More articles on the topic
Who pays for the examination
Definition of SC by civil cases Supreme Court of the Russian Federation dated February 15, 2016 No. 5-КГ15-192 The court canceled judicial acts on the recovery of legal costs for conducting an examination of the case, since the issue of ordering an examination was raised for discussion by the persons participating in the case at the initiative of the court, therefore, These persons cannot be obligated to reimburse the costs of the examination
Judicial Collegium for Civil Cases of the Supreme Court of the Russian Federation, consisting of
presiding Pchelintseva L.M.,
judges Ryzhenkov A.M. and Kirillova V.S.
considered in open court on February 15, 2016 a civil case at the request of the state budgetary institution Health of the city of Moscow "Bureau of Forensic Medical Examination of the Department of Health of the City of Moscow" for the recovery of legal costs for conducting an examination in the case brought by V.P. Korneyko. to Petrov P.P., an open insurance company joint stock company"Russia" on compensation for material damage caused by injury to health and compensation for moral damage
on the cassation appeal of Korneyko V.P. on the ruling of the Solntsevsky District Court of Moscow dated December 4, 2014 and appellate ruling Judicial Collegium for Civil Cases of the Moscow City Court dated April 20, 2015, which with Korneyko V.P. in favor of the state budgetary healthcare institution of the city of Moscow "Bureau of Forensic Medical Examination of the Department of Health of the City of Moscow" the costs of conducting the examination in the amount of 60,178 rubles were recovered.
Having heard the report of the judge of the Supreme Court of the Russian Federation A.M. Ryzhenkov, having listened to the explanations of V.P. Korneyko. and her representative by proxy A.V. Baranova, who supported the arguments of the cassation appeal, objections to P.P. Petrov’s cassation appeal, the prosecutor’s conclusion General Prosecutor's Office of the Russian Federation Vlasova T.A., who considered the arguments of the cassation appeal to be justified, the court decisions are subject to cancellation with the issue being sent for a new consideration to the court of first instance,
The Judicial Collegium for Civil Cases of the Supreme Court of the Russian Federation established:
The Solntsevsky District Court of Moscow was processing a civil case based on the claim of V.P. Korneyko. to Petrov P.P., the open joint-stock insurance company "Russia" (hereinafter - OSAO "Russia") for compensation for material damage caused by damage to health, and compensation for moral damage.
The decision of the Solntsevsky District Court of Moscow dated May 8, 2013 entered into legal force, the claim of V.P. Korneyko. partially satisfied; from Petrova P.P. in favor of V.P. Korneyko compensation for moral damage in the amount of 30,000 rubles and expenses for payment of state duty in the amount of 200 rubles were recovered in satisfaction of the claims of V.P. Korneyko. the collection of lost earnings, expenses for medicines and travel expenses was refused.
Based on the ruling of the Solntsevsky District Court of Moscow dated December 19, 2012, a forensic medical examination was carried out in this case at the state budgetary healthcare institution of the city of Moscow "Bureau of Forensic Medical Examination of the Department of Health of the City of Moscow" (hereinafter - GBUZ "Bureau of Forensic Medicine examination of the Moscow Department of Health"), the cost of which was 60,178 rubles. The parties to the case did not pay for the examination.
When the Solntsevsky District Court of Moscow made a decision on May 8, 2013, the issue of collecting legal costs for the examination was not resolved.
The State Budgetary Institution "Bureau of Forensic Medical Examination of the Moscow City Health Department" filed a claim with the court to recover the costs of conducting the case based on the claim of V.P. Korneyko. to Petrov P.P., OSJSC "Russia" for compensation for material damage caused by injury to health, and compensation for moral damage due to a forensic medical examination in the amount of 60,178 rubles.
By the ruling of the Solntsevsky District Court of Moscow dated December 4, 2014, the application of the State Budgetary Institution "Bureau of Forensic Medical Examination of the Moscow City Health Department" was satisfied. With Korneyko V.P. in favor of the State Budgetary Institution "Bureau of Forensic Medical Examination of the Moscow City Health Department" the costs of conducting a forensic medical examination in the case were recovered in the amount of 60,178 rubles.
By the appeal ruling of the judicial panel for civil cases of the Moscow City Court dated April 20, 2015, the ruling of the trial court was left unchanged.
In the cassation appeal filed with the Supreme Court of the Russian Federation, Korneyko V.P. the question is raised about transferring the complaint with the case for consideration at a court hearing of the Judicial Collegium for Civil Cases of the Supreme Court of the Russian Federation for cancellation court orders.
Based on the results of studying the arguments of the cassation appeal by the judge of the Supreme Court of the Russian Federation L.M. Pchelintseva. On October 20, 2015, the case was requested to the Supreme Court of the Russian Federation, and by its ruling dated December 29, 2015, the cassation appeal with the case was transferred for consideration at a court session of the Judicial Collegium for Civil Cases of the Supreme Court of the Russian Federation.
The persons participating in the case are duly notified of the time and place of consideration of the case in cassation procedure. At the court hearing cassation instance Representatives of the State Budgetary Institution "Bureau of Forensic Medical Examination of the Department of Health of the City of Moscow" did not appear, did not provide information about the reasons for the failure to appear, and therefore the Judicial Collegium for Civil Cases of the Supreme Court of the Russian Federation, guided by Article 385 of the Civil Procedure Code of the Russian Federation, considers it possible to consider the case in the absence of these persons.
Having checked the case materials, discussed the validity of the arguments of the cassation appeal, heard the explanations of the persons participating in the case who appeared at the court hearing, and the conclusion of the prosecutor of the General Prosecutor's Office of the Russian Federation, the Judicial Collegium for Civil Cases of the Supreme Court of the Russian Federation finds the complaint subject to satisfaction.
The grounds for canceling or changing court decisions in cassation are significant violations of substantive law or norms procedural law, which influenced the outcome of the case and without the elimination of which it is impossible to restore and protect violated rights, freedoms and legitimate interests, as well as the protection of public interests protected by law (Article 387 of the Civil Procedure Code of the Russian Federation).
The Judicial Collegium for Civil Cases of the Supreme Court of the Russian Federation comes to the conclusion that there are grounds for canceling the appealed court decisions in cassation in connection with the following.
The court established and follows from the materials of the civil case on the claim of V.P. Korneyko. to Petrov P.P., OSJSC "Russia" for compensation for material damage caused by damage to health, and compensation for moral damage, which entered into legal force by the decision of the Solntsevsky District Court of Moscow dated May 8, 2013, the claims of V.P. Korneyko. partially satisfied. From Petrova P.P. in favor of V.P. Korneyko compensation for moral damage in the amount of 30,000 rubles and expenses for payment of state duty in the amount of 200 rubles were recovered in satisfaction of the claims of V.P. Korneyko. the collection of lost earnings, expenses for medicines and travel expenses was refused.
When considering this civil case, by a ruling of the Solntsevsky District Court of Moscow dated December 19, 2012, a forensic medical examination was ordered, the production of which was entrusted to the experts of the State Budgetary Institution "Bureau of Forensic Medical Examination of the Moscow City Health Department", and the responsibility for paying for it was assigned to the defendant Petrov P .P., which he had to fulfill before February 15, 2013.
On April 6, 2013, based on the results of the forensic medical examination, experts from the State Budgetary Institution "Bureau of Forensic Medical Examination of the Moscow City Health Department" prepared a conclusion.
When the decision was made on May 8, 2013, the court did not resolve the issue of collecting legal costs for the examination.
Payment for the examination was not made, and therefore the State Budgetary Institution "Bureau of Forensic Medical Examination of the Moscow City Health Department" on September 12, 2014, applied to the Solntsevsky District Court of Moscow with an application to recover the costs of the examination in the amount of 60,178 rubles.
Satisfying the application of the State Budgetary Institution "Bureau of Forensic Medical Examination of the Moscow City Health Department" and recovering from V.P. Korneiko. in favor of the State Budgetary Institution "Bureau of Forensic Medical Examination of the Department of Health of the City of Moscow" the costs of conducting a forensic medical examination in the amount of 60,178 rubles, the court of first instance, guided by the provisions of Articles 95, 98 of the Civil Procedure Code of the Russian Federation, proceeded from the fact that those who entered into legal force by the decision of the Solntsevsky District Court of Moscow dated May 8, 2013 in satisfying the claims of V.P. Korneyko. in terms of recovery from the defendants of treatment costs, lost earnings, transportation costs and expenses for the purchase of medicines in the total amount of 128,385.78 rubles, it was refused, the examination carried out in the case was necessary to verify the plaintiff’s arguments about the need to recover the specified amount from the defendant and the costs of carrying out the said examination by the defendant P.P. Petrov. were not paid, and therefore came to the conclusion that V.P. obligations to reimburse the costs of conducting a forensic medical examination in the amount of 60,178 rubles.
The court agreed with this conclusion of the trial court appellate court.
The Judicial Collegium for Civil Cases of the Supreme Court of the Russian Federation believes that the conclusions of the courts of first and appellate instances are based on incorrect application and interpretation of procedural law.
In accordance with paragraph two of part 2 of Article 85 of the Civil Procedure Code of the Russian Federation, an expert or forensic institution does not have the right to refuse to conduct an examination assigned to him within the time period established by the court, citing the refusal of the party to pay for the examination before it is carried out. If a party refuses to pre-pay for the examination, the expert or forensic institution is obliged to conduct an examination appointed by the court and, together with an application for reimbursement of expenses incurred, send the expert's opinion to the court with documents confirming the costs of conducting the examination, for the court to decide the issue of reimbursement of these expenses to the appropriate party, taking into account the provisions of part one of Article 96 and Article 98 of the Code.
According to Part 2 of Article 96 of the Civil Procedure Code of the Russian Federation, if the calling of witnesses, the appointment of experts, the involvement of specialists and other actions subject to payment are carried out on the initiative of the court, the corresponding expenses are reimbursed from the federal budget.
Part 1 of Article 98 of the Civil Procedure Code of the Russian Federation provides that the party in whose favor the court decision was made, the court awards the other party to reimburse all legal expenses incurred in the case, except for the cases provided for in part two of Article 96 of this code. If the claim is partially satisfied, the legal costs specified in Article 98 of the Code are awarded to the plaintiff in proportion to the amount of the claims satisfied by the court, and to the defendant in proportion to the part of the claims that were denied to the plaintiff.
It follows from the above procedural rules that if the issue of ordering an examination is brought up for discussion by the persons participating in the case on the initiative of the court, and not at the request of the persons participating in the case themselves, the court does not have the right to impose on these persons the obligation to reimburse the costs of carrying out the examination, these costs must be paid from the federal budget.
In accordance with Part 2 of Article 56 of the Civil Procedure Code of the Russian Federation, the court determines what circumstances are important for the case, which party must prove them, and brings the circumstances up for discussion, even if the parties did not refer to any of them.
The court, allowing the application of the State Budgetary Institution "Bureau of Forensic Medical Examination of the Department of Health of the City of Moscow" to recover legal costs for the examination, was guided by the provisions of Part 1 of Article 98 of the Civil Procedure Code of the Russian Federation and proceeded from the fact that, since in satisfying the claims of Korneyko V. P. The claim for recovery of lost earnings, expenses for medicines and travel expenses was refused, and she should be required to pay for the examination.
Meanwhile, from the minutes of the court hearing dated December 19, 2012 (case sheets 68-69) it follows that the forensic medical examination of the case under the claim of V.P. Korneiko to Petrov P.P., OSJSC "Russia" for compensation for material damage caused by damage to health, and compensation for moral damage was awarded on the initiative of the court. The plaintiff and defendant did not object to its holding. Korneyko V.P. opposed the imposition of the obligation on her to pay for the examination, and Petrov P.P. agreed to pay for it.
However, the court, in violation of Articles 56, 195, part 4 of Article 198 of the Civil Procedure Code of the Russian Federation, did not examine the circumstances related to the appointment of a forensic medical examination in the case and did not take into account when resolving the issue of assigning the costs of the examination to the plaintiff V.P. Korneyko .
Thus, the conclusion of the courts of first and appellate instances that there are grounds for recovery from the plaintiff Korneyko V.P. in favor of the State Budgetary Institution "Bureau of Forensic Medical Examination of the Department of Health of the City of Moscow" the costs of conducting a forensic medical examination incurred by this institution in connection with the judicial consideration of the dispute are not based on the norms of the law and the circumstances relevant to the case to be established in accordance with them .
Taking into account the above, the ruling of the first instance court and the ruling of the appellate court, which left it unchanged, on the recovery from V.P. Korneyko. in favor of the State Budgetary Institution "Bureau of Forensic Medical Examination of the Department of Health of the City of Moscow" the costs of the examination are recognized by the Judicial Collegium for Civil Cases of the Supreme Court of the Russian Federation as accepted with a significant violation of the norms of procedural law, which influenced the outcome of the case, which, according to Article 387 of the Civil Procedure Code of the Russian Federation is the basis for their cancellation and referral of the issue on the application of the State Budgetary Institution "Bureau of Forensic Medical Examination of the Moscow City Health Department" on the recovery of legal costs for the examination for a new trial to the court of first instance.
When reconsidering the issue of collecting legal costs for conducting an examination, the court should resolve it in accordance with the law and the circumstances established in the case.
The Judicial Collegium for Civil Cases of the Supreme Court of the Russian Federation, guided by Articles 387, 388, 390 of the Civil Procedure Code of the Russian Federation, determined:
the ruling of the Solntsevsky District Court of Moscow dated December 4, 2014 and the appeal ruling of the judicial panel for civil cases of the Moscow City Court dated April 20, 2015 on the recovery from V.P. Korneyko. in favor of the state budgetary healthcare institution of the city of Moscow "Bureau of Forensic Medical Examination of the Department of Health of the City of Moscow" the costs of conducting the examination in the amount of 60,178 rubles will be cancelled.
Send the question regarding the application of the state budgetary healthcare institution of the city of Moscow "Bureau of Forensic Medical Examination of the Department of Health Care of the City of Moscow" about the recovery of legal costs for the examination for a new trial to the court of first instance - Solntsevsky District Court of Moscow.
Document overview
The citizen's claim for compensation for material damage caused by injury to health and compensation for moral damage was partially satisfied.
The plaintiff was then charged the costs of the forensic examination.
The court proceeded from the fact that the plaintiff was refused to recover certain expenses. And the examination was carried out precisely to verify the arguments about the need to recover this amount from the defendant.
But the Judicial Collegium for Civil Cases of the Supreme Court of the Russian Federation sent the issue of payment for the examination for a new consideration. This is explained as follows.
If the issue of ordering an examination is brought up for discussion among the persons participating in the case on the initiative of the court, and not at their request, the court does not have the right to impose on them the costs of conducting it. These costs must be paid from the federal budget.
In the case under consideration, a forensic medical examination was ordered at the initiative of the court. The plaintiff and defendant did not object to its holding. The plaintiff was against imposing the obligation to pay for the examination, and the defendant agreed to pay for it.
However, the court did not examine or take into account these circumstances.
