During the proceedings. Expert in criminal proceedings, forms of his participation in the course of the proceedings. Judgments not subject to

Preparing a case for trial is an independent and mandatory stage of the civil process. After the statement of claim is accepted and the judge makes a ruling to initiate civil proceedings in the case, the next stage of the civil process begins - preparing the case for trial. The judge issues a ruling on preparing the case for trial and in his ruling indicates the actions that need to be taken by the parties and other persons involved in the case to ensure the correct and timely consideration and resolution of the case.

Preparing a case for trial as a stage of civil proceedings pursues the following goals and objectives according to Art. 148 Code of Civil Procedure of the Russian Federation:

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

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

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

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

5) possible reconciliation of the parties.

At the stage of preparing the case for trial, the parties must perform procedural actions specified by procedural law. The plaintiff or his representative must provide the defendant with copies of evidence substantiating the factual basis of the claim; submit a petition to the judge to obtain evidence that he cannot obtain on his own without the help of the court. In turn, the defendant or his representative, if necessary, clarifies the plaintiff’s claims and the factual basis for these claims; submit written objections to the plaintiff or his representative and the court regarding the claims; provide the plaintiff or his representative and the judge with evidence substantiating the objections to the claim. They also have the right to submit petitions to the judge to obtain evidence that cannot be obtained independently without the help of the court.

In addition to the parties, the court must also prepare for the trial, i.e., carry out those actions that, when considering the case on its merits, will help the judge make a correct, and most importantly, a legal and reasoned decision (Article 150 of the Code of Civil Procedure of the Russian Federation). When preparing a case for trial, the court:

1) explains to the parties their procedural rights and obligations;

2) interrogates the plaintiff or his representative on the merits of the stated claims and invites, if necessary, to provide additional evidence within a certain period of time;

3) interrogates the defendant on the circumstances of the case, finds out what objections there are to the claim and what evidence these objections can be confirmed;

4) resolves the issue of the entry into the case of co-plaintiffs, co-defendants and third parties without independent claims regarding the subject of the dispute, and also resolves issues of replacing an improper defendant, joining and severing claims;

5) takes measures for the parties to conclude a settlement agreement and explains to the parties their right to seek resolution of the dispute in an arbitration court and the consequences of such actions;

6) notifies the citizens or organizations interested in the outcome of the case about the time and place of the hearing;

7) resolves the issue of calling witnesses;

8) appoints an examination and an expert to conduct it, and also resolves the issue of involving a specialist or translator in the process;

9) at the request of the parties, other persons participating in the case, their representatives, requests from organizations or citizens evidence that the parties or their representatives cannot obtain on their own;

10) in urgent cases, conducts an on-site examination of written and material evidence, notifying the persons participating in the case;

12) takes measures to secure the claim;

13) resolves the issue of holding a preliminary court hearing, its time and place;

14) perform other necessary procedural actions.

In civil proceedings, in some cases it becomes necessary to obtain evidence at the request of one of the parties located in another area or city. The court hearing the case instructs the relevant court in whose territory the evidence is located to carry out certain procedural actions. In this case, the court that has ordered the conduct of procedural actions on behalf of the court issues a ruling that briefly outlines the content of the case under consideration and indicates information about the parties, their place of residence or their location, the circumstances to be clarified, and the evidence that the court carrying out the request must collect. It should be noted that this order is binding on the court to which it is addressed. The civil procedural legislation establishes the period within which a court order must be executed - 1 month from the date of receipt of the court order. Sending a letter of request may be grounds for suspending the proceedings. The court, which received a court order to conduct procedural actions, carries out the court order and conducts a court hearing according to the rules established by civil procedural legislation. Persons participating in the case are duly notified of the place and time of the court hearing. However, the failure of persons participating in the case to appear is not an obstacle to the execution of a court order. When executing a letter of request, all protocols drawn up and evidence collected are immediately sent to the court hearing the case.

At the stage of preparing the case for trial, a court hearing may be held; it is in accordance with Art. 152 of the Code of Civil Procedure of the Russian Federation will be called a “preliminary court hearing”. The preliminary court hearing has as its goal the procedural consolidation of the administrative actions of the parties committed in preparing the case for trial, the determination of circumstances that are important for the proper consideration and resolution of the case, the determination of the sufficiency of evidence in the case, the investigation of facts of missed deadlines for filing a lawsuit and the limitation period. The preliminary hearing is conducted by a single judge. The parties are notified of the time and place of the preliminary court hearing. The parties at the preliminary court hearing have the right to present evidence, present arguments, and make motions. In complex cases, taking into account the opinions of the parties, the judge may set a date for holding a preliminary court hearing that goes beyond the time limits established by procedural law for the consideration and resolution of cases. If there are circumstances providing grounds for suspension and termination of the proceedings, the proceedings in the case at the preliminary court hearing may be suspended or terminated, and the application left without consideration. When deciding to suspend or terminate proceedings in a case, the judge issues a ruling against which a private complaint can be filed.

At a preliminary court hearing, the defendant’s objection regarding the plaintiff’s missing the statute of limitations for the protection of the right and the period established by civil law for going to court without good reason may be considered.

If it is established that the statute of limitations or the deadline for going to court has been missed without good reason, the judge makes a decision to reject the claim without examining other factual circumstances in the case. The court decision can also be appealed through the appellate or cassation procedures.

Enshrined in civil procedural law principle of mandatory protocol keeping. According to Art. 228 of the Code of Civil Procedure of the Russian Federation, during each court session of the court of first instance, as well as when each procedural action is performed outside the court session, a protocol is drawn up, including at the preliminary meeting, the protocol of the preliminary meeting is drawn up in accordance with the provisions provided for in Art. 229 and 230 Code of Civil Procedure of the Russian Federation.

After preliminary preparation of the case for trial, when the judge decides that the case is prepared for consideration on the merits, the judge makes a ruling on assigning the case to trial. The parties, persons participating in the case, and other participants in the civil process are duly notified of the place and time of the trial and consideration of the case on the merits.

Trial is one of the important stages of civil proceedings, since it is at this stage that the main task of civil proceedings is realized - the protection of violated or disputed rights, freedoms and legitimate interests of participants in civil proceedings. It is at this stage that, through a decision, the court restores rights and protects interests protected by law.

Initiation of civil proceedings in a case and preparation of the case for trial are the organizational stages of the civil process. It is at these stages that the parties present the necessary evidence to the court, submit petitions, realize the possibility of securing the claim by the court, execute letters of orders so that at the stage of the trial the judge does not dwell on organizational issues, but proceeds immediately to the direct resolution and consideration of the case on the merits, or more precisely, to the protection of the violated or disputed right and legitimate interest of a person.

Procedural legislation provides term for consideration and resolution of a civil case on the merits: for courts of general jurisdiction the period is 2 months, and for magistrates the period during which the case must be considered is determined at 1 month. This distinction is determined by the categories of complexity of cases that are assigned to a particular court in accordance with jurisdiction.

Federal law or rules of civil procedural law may establish a shortened period of trial. For example, part 2 of Art. 154 of the Code of Civil Procedure of the Russian Federation indicates that cases of reinstatement at work and the collection of alimony are considered and resolved before the expiration of a month.

The hearing of a civil case takes place in a court session with mandatory notification of the persons participating in the case about the time and place of the hearing. The trial is conducted by a single judge. In cases provided for by procedural legislation, the court hearing is held in a collegial composition. It is worth noting that the court hearing is always conducted by the magistrate alone. In a collegial hearing of a case, the court consists of three professional judges, one of whom is the presiding judge. According to Art. 156 of the Code of Civil Procedure of the Russian Federation, the presiding judge presides over the court hearing, creates conditions for a comprehensive and complete examination of the evidence and circumstances of the case, and eliminates from the trial everything that is not related to the case under consideration.

If any of the participants in the process objects to the actions of the presiding officer, these objections are recorded in the minutes of the court session. The presiding officer gives explanations regarding his actions, and during a collegial consideration of the case, explanations are given by the entire composition of the court. The presiding officer takes the necessary measures to ensure proper order at the court hearing. The orders of the presiding judge are binding on all participants in the process, as well as on citizens present in the courtroom.

Consideration of the case on the merits in civil proceedings occurs with strict adherence to principles of direct examination of evidence in court, for which it is necessary to hear the explanations of the parties and third parties, testimony of witnesses, expert opinions, consultations and explanations of specialists, read written evidence, examine physical evidence, listen to audio recordings and watch video recordings. The court hearing is conducted orally, and the entire course of the trial is recorded in the minutes of the court session, which is also written evidence.

The trial is conducted with the same composition of judges. Through this provision, the constitutional principle of irremovability of judges is implemented (Article 121 of the Constitution of the Russian Federation). The powers of a judge may be terminated or suspended only in the manner and on the grounds provided for by the Federal Law on the Status of Judges in the Russian Federation. If grounds arise for the removal or replacement of one of the judges during the consideration of a case, the proceedings must be carried out from the very beginning. An important principle directly related to litigation is the principle of continuity. Part 3 Art. 157 of the Code of Civil Procedure of the Russian Federation states that the court hearing in each case takes place continuously, with the exception of the time designated for rest. Until the end of the consideration of the initiated case or until the adjournment of its proceedings, the court has no right to consider other civil, criminal and administrative cases. This rule is mandatory for the court and should not be violated during civil proceedings.

The question arises: can a judge, during a break in court proceedings in a civil case (claim proceedings, proceedings in cases arising from public legal relations, special proceedings, etc.), issue a court order? Writ proceedings have a significant difference from other types of civil proceedings - there is no stage of consideration and resolution of the case on the merits. However, this does not give judges the right to make an exception to the general rule. The law provides for a mandatory norm that cannot be violated, so even the issuance of an order during the judges' break should not take place. Signing a court order or other document in violation of Art. 157 of the Code of Civil Procedure of the Russian Federation, i.e., during the conduct of another case, can be considered a gross violation of procedural norms, and a court decision made by a judge can be canceled by a higher court.

The trial can be divided into several components: preparatory part, investigation of the circumstances of the case, conclusion of the prosecutor, representative of a state body or representative of a local government body, judicial debate, resolution and announcement of the court decision.

In court there is a certain the procedure for conducting the trial established by Art. 158 Code of Civil Procedure of the Russian Federation. When judges enter the courtroom, everyone present in the courtroom stands up. The announcement of the court decision, as well as the announcement of the court ruling, which ends the case without making a decision, is heard by all those present in the courtroom standing. Participants in the trial address the judges with the words “Dear Court!”, and they give their testimony and explanations while standing. Deviations from this rule may be permitted with the permission of the presiding officer. For example, due to physical condition, age, etc.

At the time appointed for the hearing of the case, the presiding judge opens the court session and announces which civil case is to be considered.

The preparatory part of the court session includes the following provisions. The secretary of the court session checks the attendance of all persons who have appeared, and also announces the reasons for the absence of persons duly notified.

In turn, the presiding officer establishes the identity of the persons participating in the case, checks the powers of officials, as well as the properly formalized powers of representatives.

After checking the persons who have appeared in court, the court explains to the persons participating in the case their procedural rights and procedural obligations. In practice, there is a situation where procedural rights and obligations are printed on the back of the court notice. It is assumed that, upon receiving a notice, a person must familiarize himself with his procedural rights and obligations in order not to waste time on this in court. However, such actions are not legal. At the beginning of the trial, the court must once again explain and determine the range of procedural rights and obligations of the persons participating in the case.

Need to determine range of consequences if persons participating in the case fail to appear at a court hearing (Article 167 of the Code of Civil Procedure of the Russian Federation):

1) if any of the persons participating in the case, in respect of whom there is no information about their notification, fails to appear at the court hearing, the hearing of the case is postponed;

2) if the persons participating in the case are notified of the time and place of the court hearing, the court postpones the hearing of the case if the reasons for their failure to appear are recognized as valid;

3) the court has the right to consider the case if any of the persons participating in the case and notified of the time and place of the court session fail to appear, if they do not provide information about the reasons for the failure to appear or the court recognizes the reasons for their failure to appear as disrespectful;

4) the court has the right to consider the case in the absence of the defendant, who has been notified of the time and place of the court hearing, if he has not informed the court of valid reasons for failure to appear and has not asked to consider the case in his absence;

5) the parties have the right to ask the court to consider the case in their absence and to send them copies of the court decision;

6) the court may postpone the hearing of the case at the request of a person participating in the case due to the failure of his representative to appear for a good reason.

After all preparatory actions have been completed, consideration of the case on its merits begins. The presiding judge then determines whether the plaintiff supports his claims, whether the defendant recognizes the plaintiff’s demands, and whether the parties wish to conclude the case with a settlement agreement. If the parties express a desire to conclude a settlement agreement, the court issues a ruling on approval of the settlement agreement and termination of proceedings in the case. If the parties to these procedural actions have submitted a refusal, then the consideration of the case on the merits continues.

The next part of the court session is characterized by an examination of the circumstances of the case, i.e., explanations of the parties and third parties are heard, witnesses are questioned (and the witnesses who have appeared are removed from the courtroom, and the presiding officer takes measures to ensure that the questioned witnesses do not communicate with the unexamined witnesses), Written and material evidence is examined and inspected, audio or video recordings are played and examined.

After examining all the evidence, the presiding officer gives the floor to the prosecutor, representative of the state body or representative of the local government participating in the process for an opinion on the case. Finds out from other persons involved in the case and their representatives whether they would like to provide additional explanations. In the absence of such statements, the presiding judge declares the consideration of the case on the merits completed, and the court proceeds to judicial debate (Article 189 of the Code of Civil Procedure of the Russian Federation).

In judicial debates, persons participating in the case express their opinions on the examination of evidence, on the completeness of the evidence presented, on the correctness and legality of the trial in the case, etc. It must be remembered that the first to participate in the debate are the prosecutor, representatives of government agencies, authorities local government, organizations and citizens who have applied to the court to protect the rights and legitimate interests of other persons. If the above persons did not participate in the case, then the plaintiff and his representative participate first in the debate. The right of the last remark always belongs to the defendant, his representative.

The trial of a civil case ends with the removal of the court to the deliberation room to make a judicial decision. According to Art. 193 of the Code of Civil Procedure of the Russian Federation, after the decision is made and signed, the court returns to the courtroom, where the presiding judge or one of the judges announces the court decision. Then the presiding officer orally explains the content of the court decision, the procedure and deadline for appealing it. When announcing only the operative part of a court decision, the presiding judge is obliged to explain when the persons participating in the case and their representatives can familiarize themselves with the reasoned court decision.

During a court hearing, all persons present must observe proper order and not interfere with persons taking photographs and video recordings permitted by the court, or broadcasting the court hearing on radio and television. Please note that all actions in the courtroom are carried out only with the permission of the presiding judge.

These actions must be carried out at places in the courtroom indicated by the court and, taking into account the opinions of the persons participating in the case, may be limited by the court in time. A person who violates the rules of behavior in the courtroom is given a warning by the presiding judge on behalf of the court. In case of repeated violation of order, a person participating in the case or his representative may be removed from the courtroom on the basis of a court ruling for the entire duration of the court session or part of it.

In the latter case, the presiding officer introduces the person newly admitted to the courtroom with the procedural actions performed in his absence. Citizens present at the court hearing for repeated violation of order are removed by order of the presiding officer from the courtroom for the entire duration of the court session.

The court also has the right to impose a fine of up to 10 minimum wages on persons guilty of violating order at a court hearing. If the actions of a person violating order in a court session contain signs of a crime, the judge sends the relevant materials to the prosecutor to initiate criminal proceedings against the violator. In the event of a massive violation of order by citizens present at a court hearing, the court may remove citizens who are not participants in the process from the courtroom and consider the case in a closed court session or postpone the hearing of the case.

The court has the power to temporarily suspend the trial. Suspension may be expressed in forminterruption, adjournment and suspension.

As a rule, break The judges are announced to rest. The reason for a break may also be the occurrence of unforeseen circumstances, which can be resolved in a much quicker time.

It is not allowed to announce a break before the court leaves for the deliberation room to make a decision. After the announced break, the case continues from the point where it was stopped. The minutes of the court session record the time the court went for a break, as well as the time the proceedings were resumed.

Deposition– actions of the court to postpone the consideration of the case. Postponement of the trial of the case is allowed in cases where the court finds it impossible to consider the case at this court session due to the failure of any of the participants in the process (for example, the failure to appear of witnesses, an expert and an interpreter), the filing of a counterclaim, the need to present or require additional evidence, or the involvement of in the case of other persons, performing other procedural actions. If the trial of the case is postponed, a date for a new court hearing is set, taking into account the time required to call the participants in the process or request evidence, which is announced to the persons who have appeared against receipt.

Persons who did not appear and persons newly invited to participate in the process are notified of the time and place of the new court hearing. The trial of the case after its adjournment begins again.

The Code of Civil Procedure of the Russian Federation provides for mandatory cases of suspension of proceedings in a case, as well as the possibility of suspension of proceedings in a case at the initiative of the court. The court’s obligation to suspend proceedings in the case in the following cases (Article 215 of the Code of Civil Procedure of the Russian Federation):

1) the death of a citizen, if the disputed legal relationship allows for legal succession, or the reorganization of a legal entity who are parties to the case or third parties with independent claims;

2) recognition of a party as incompetent or the absence of a legal representative from a person declared incompetent;

3) the defendant’s participation in hostilities, performing tasks in a state of emergency or martial law, as well as in military conflicts, or the request of the plaintiff participating in hostilities or in performing tasks in a state of emergency or martial law, as well as in military conflicts;

4) the impossibility of considering this case before the resolution of another case being considered in civil, administrative or criminal proceedings;

5) the court's appeal to the Constitutional Court of the Russian Federation with a request regarding the compliance of the law to be applied with the Constitution of the Russian Federation.

Suspension of proceedings in a case at the initiative of the court (i.e. optional suspension) or persons participating in the case is possible if (Article 222 of the Code of Civil Procedure of the Russian Federation):

1) the party is in a medical institution;

2) searching for the defendant;

3) appointment of an expert examination by the court;

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

The legislator provides for deadlines and circumstances upon the occurrence of which proceedings in civil cases must be resumed: until the determination of the successor of the person participating in the case, or the appointment of a legal representative for the incapacitated person; until the circumstances that served as the basis for suspending the proceedings are eliminated; before the entry into force of a court decision, court decision, sentence, court ruling or before the adoption of a resolution based on the materials of the case being considered in administrative proceedings; until the Constitutional Court of the Russian Federation adopts a corresponding resolution.

The suspension of the proceedings is recorded in the minutes of the court session. After eliminating the reasons for suspension of the proceedings, the court notifies all persons participating in the case and sets the date, place, and time of the court hearing. After the resumption of proceedings in the case, the case continues from the moment at which it was suspended.

In Art. 220 Code of Civil Procedure of the Russian Federation provides grounds for termination of proceedings:

1) the case is not subject to consideration and resolution in court in civil proceedings;

2) there is a court decision or a court ruling that has entered into legal force and was adopted on a dispute between the same parties, on the same subject and on the same grounds, to terminate the proceedings in connection with the acceptance of the plaintiff’s waiver of the claim or the approval of a settlement agreement between the parties;

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

4) the parties entered into a settlement agreement, and it was approved by the court;

5) there is a decision of the arbitration tribunal that has become binding on the parties, adopted on a dispute between the same parties, on the same subject and on the same grounds, except in cases where the court refused to issue a writ of execution for the forced execution of the arbitration tribunal’s decision;

6) the death of a citizen who was one of the parties to the case, a controversial legal relationship does not allow succession, or the liquidation of an organization that was one of the parties to the case.

From practice. According to the Determination of the Constitutional Court of the Russian Federation of May 12, 2005 No. 244-O, the provisions of clause 1, part 1, art. 134 and art. 220 in conjunction with Art. 253 of the Code of Civil Procedure of the Russian Federation suggest that the court cannot terminate proceedings in a case challenging a normative legal act recognized by a decision of a state authority, local government body or official who adopted this normative legal act as no longer in force after filing a corresponding application with the court, if in During the trial, it will be established that the contested normative legal act violates the rights and freedoms of the applicant guaranteed by the Constitution of the Russian Federation, laws and other normative legal acts.

The proceedings in the case are terminated by a court ruling, which must indicate that a repeated appeal to the court in a dispute between the same parties, about the same subject and on the same grounds is not allowed (Article 221 of the Code of Civil Procedure of the Russian Federation).

Protocol of the court session is one of the most important documents of the court proceedings, since it reflects the entire course of the court session, statements of persons participating in the case, statements and consideration of petitions, the moment the court announced an adjournment, suspension of the court session, etc. The minutes of the court session are drawn up in in writing by the secretary of the court session when performing any procedural action during the trial. The secretary of the court session may use technical means (audio recording, shorthand and other technical means) in order to more fully compile the protocol. In this case, the secretary of the court session must indicate in the minutes the use and application of technical means. The audio recording medium must be sealed and attached to the case materials. Persons participating in the case and their representatives have the right to petition for the disclosure of any part of the protocol, for the inclusion in the protocol of information about circumstances that they consider significant for the case. The minutes of the court session must be drawn up and signed no later than 3 days after the end of the court session. The minutes of the court session are signed by the presiding officer and the secretary of the court session. All changes, additions, and corrections made to the protocol must be agreed upon and certified by the signatures of the presiding judge and the secretary of the court session (Article 230 of the Code of Civil Procedure of the Russian Federation).

Persons participating in the case and their representatives have the right to familiarize themselves with the protocol and, within 5 days from the date of its signing, submit written comments on the protocol indicating inaccuracies and (or) incompleteness in it (Article 231 of the Code of Civil Procedure of the Russian Federation).

The minutes of the court hearing must contain the following content (Article 229 of the Code of Civil Procedure of the Russian Federation):

1) date and place of the court hearing;

2) the start and end time of the court session;

3) the name of the court hearing the case, the composition of the court and the secretary of the court session;

4) name of the case;

5) information about the appearance of persons participating in the case, their representatives, witnesses, experts, specialists, translators;

6) information about explanations to persons participating in the case, their representatives, witnesses, experts, specialists, translators of their procedural rights and obligations;

7) orders of the presiding judge and rulings made by the court in the courtroom;

8) statements, petitions and explanations of persons participating in the case, their representatives;

9) testimony of witnesses, explanations by experts of their conclusions, consultations and explanations of specialists;

10) information about the disclosure of written evidence, data from the inspection of material evidence, listening to audio recordings, viewing video recordings;

13) information about the announcement and explanation of the content of the court decision and court rulings, an explanation of the procedure and deadline for appealing them;

14) information about explaining to the persons participating in the case their rights to familiarize themselves with the protocol and submit comments on it;

15) date of drawing up the protocol.

Along with writ proceedings absentee proceedings are a simplified form of proceedings in civil cases . Previously, the Code of Civil Procedure of the RSFSR did not provide for absentee proceedings. This is explained by the fact that in the Civil Procedure Code of the RSFSR, along with the principle of adversarialism and equality of parties, there was the principle of objective truth, by virtue of which the court had the right to collect evidence on its own initiative even in the absence of one of the parties in civil proceedings. When making a judgment, the court had to find out all the circumstances relating to the proceedings. According to the provisions of the Code of Civil Procedure of the Russian Federation, the court does not have such powers, as a result of which, if certain circumstances arise, the court can make a decision in absentia. This proceeding is in absentia only for the defendant who did not appear in court when notified of the time, place and date of the trial. If there is complicity in the proceedings, the court may make a judgment in absentia if all co-defendants are absent. However, the plaintiff may not agree to conduct proceedings in absentia, and then the court hearing is postponed to another day with a notice sent to the defendant (defendants) about the next court hearing. If the plaintiff does not object to the case being considered in absentia proceedings, the court issues a ruling to consider the case through absentee proceedings. The court may refuse to conduct proceedings in absentia if the plaintiff wishes to change the price of the claim, the basis of the claim, etc. When considering a case in absentia proceedings, the court conducts a hearing in the general manner, i.e., examines the evidence presented by the persons participating in the case, takes into account their arguments and makes a decision, which is called in absentia (Article 234 of the Code of Civil Procedure of the Russian Federation). After the end of the trial and after the adoption of a decision in absentia, the court sends the defendant (defendants) a copy of the decision in absentia within 3 days from the date of its adoption with notification of delivery. The plaintiff, who was not present at the court hearing and who asked the court to consider the case in his absence, is also sent a copy of the default decision no later than 3 days after its adoption with notification of delivery. The defendant has the right to file with the court that made the default decision an application to cancel this court decision within 7 days from the date of delivery of a copy of this decision. An absentee court decision can also be appealed by the parties in cassation (an absentee decision of a magistrate - in an appeal procedure) within 10 days after the expiration of the deadline for the defendant to file an application to cancel this court decision, and if such an application is filed, within 10 days from the date of the court ruling refusing to satisfy this application. Consequently, a default judgment can be appealed within a total of 17 days.

When the defendant submits an application to cancel the default judgment, it must contain (Article 238 of the Code of Civil Procedure of the Russian Federation):

1) the name of the court that made the decision in absentia;

2) name of the person submitting the application;

3) circumstances indicating good reasons for the defendant’s failure to appear at the court hearing, which he was not able to inform the court in a timely manner, and evidence confirming these circumstances, as well as circumstances and evidence that may affect the content of the court’s decision;

4) request of the person submitting the application;

5) a list of materials attached to the application.

It should also be noted that an application to cancel a default judgment does not require payment of a state fee.

The court decision in absentia is subject to cancellation, if the court establishes that the defendant’s failure to appear at the court hearing was caused by valid reasons, which he was not able to inform the court in a timely manner, and the defendant refers to circumstances and presents evidence that may affect the content of the court decision (Article 242 of the Code of Civil Procedure of the Russian Federation) . If the default judgment is canceled, the court resumes consideration of the case on the merits. If the defendant, duly notified of the time and place of the court hearing, fails to appear, the court decision adopted during the new consideration of the case will not be in absentia. The defendant does not have the right to re-submit an application for review of this decision in absentia proceedings (Article 243 of the Code of Civil Procedure of the Russian Federation). After the expiration of all appeal periods, the absentee decision enters into legal force.

Postponement of the trial of a case is the transfer of consideration of the case on the merits to another court hearing.

Postponement of the trial of the case is allowed in cases provided for by the Civil Procedure Code of the Russian Federation, as well as in the event that the court finds it impossible to consider the case at this court session due to the failure of any of the participants in the process, the filing of a counterclaim, the need to present or require additional evidence, or the involvement of participation in the case of other persons, performing other procedural actions.

Unlike the suspension of proceedings in a case, the list of grounds for postponing the proceedings of a case is not exhaustive and is not divided into mandatory and optional.

The Code of Civil Procedure of the Russian Federation provides for only one case when the court is obliged to postpone the hearing of the case. This is a failure to appear for any of the persons participating in the case for whom there is no information about their notification (paragraph 1, part 2, article 167 of the Code of Civil Procedure of the Russian Federation).

If the trial of the case is postponed, a date for a new court hearing is set, taking into account the time required to call the participants in the process or request evidence, which is announced to the persons who have appeared against receipt. Persons who did not appear and persons newly invited to participate in the process are notified of the time and place of the new court hearing.

If the trial of a case is postponed, the court has the right to question the witnesses who have appeared, if the parties are present at the court hearing. A second summons to a new court hearing is allowed only if necessary.

The determination to postpone the trial of the case, which is issued in the form of a separate procedural document or set out in the minutes of the court session, indicates the reasons for the postponement, the procedural actions that must be performed to ensure the possibility of considering the case at the next court hearing, as well as the time and place of its holding. The ruling to postpone the trial of the case is not subject to appeal (Articles 331 and 371 of the Code of Civil Procedure of the Russian Federation).

A new trial of the case after its adjournment, in accordance with the principle of continuity and immediacy, begins from the beginning, that is, with the preparatory part of the court session.

Part 4 of Article 169 of the Code of Civil Procedure of the Russian Federation contains a provision that is a kind of exception to these principles. It is allowed to continue the trial without repeating previously given explanations of all participants in the process under the following conditions: the parties do not insist on repeating these explanations; they are familiar with the case materials, including the explanations of the participants in the process given earlier; the composition of the court has not changed. In this case, the court provides the participants in the process with the opportunity to confirm the previously given explanations without repeating them, supplement them, and ask additional questions. Consideration of the case after its adjournment in this manner is the right, not the obligation of the court.

Postponement of the hearing of a case does not affect the course of procedural time limits.

Suspension of proceedings in a case is a temporary cessation of procedural actions due to circumstances beyond the control of the court and the parties that impede the further progress of the case.

Procedural legislation distinguishes between mandatory and optional suspension of proceedings.

The court in accordance with Art. 215 of the Code of Civil Procedure of the Russian Federation is obliged to suspend proceedings in the case in the following cases:

• death of a citizen (if the disputed legal relationship allows for legal succession) or who are parties to the case or third parties making independent claims regarding the subject of the dispute;
• recognition of a party as incompetent or the absence of a legal representative from a person declared incompetent;
• participation of the defendant in hostilities, performing tasks under conditions of emergency or martial law, as well as in military conflicts;

• requests from a plaintiff participating in hostilities or performing tasks in a state of emergency or martial law, as well as in military conflicts;
• the impossibility of considering this case before the resolution of another case being considered in civil or criminal proceedings;
• appeal to the Constitutional Court of the Russian Federation with a request regarding the compliance of the law to be applied with the Constitution of the Russian Federation.

The court in accordance with Art. 216 of the Code of Civil Procedure of the Russian Federation may suspend proceedings either at the request of persons participating in the case or on its own initiative in the following cases:

1. the party is in a medical institution;
2. search for the defendant;
3. appointment of an expert examination by the court;
4. appointment by the guardianship and trusteeship body of an examination of the living conditions of adoptive parents in the case of adoption and other cases affecting the rights and legitimate interests of children;
5. sending a court order if it is necessary to obtain evidence located in another city or region.

In accordance with Art. 216 of the Code of Civil Procedure of the Russian Federation, the decision to suspend proceedings in a case depends on the discretion of the court in each specific situation. Thus, conducting an examination, searching for the defendant, examining the living conditions of the adoptive parents by the guardianship and trusteeship authority in the case of adoption and in other cases affecting the rights and legitimate interests of children may require quite a long time; it is often not possible to determine the exact date for the implementation of these actions possible. In such cases, it is advisable for the court to suspend the proceedings in order to avoid violation of the deadline for consideration of the case. If, for example, the examination of the case does not seem complicated and it can be completed in a short period of time with the determination of the exact date within the period for consideration of the case, then in this case the proceedings in the case may not be suspended, but the trial may be postponed.

The period of suspension is regulated by Art. 217 of the Code of Civil Procedure of the Russian Federation and are determined by the elimination of the circumstances that led to the suspension of the proceedings.

Due to the above, the court does not indicate the period for which the proceedings in the case are suspended.

The proceedings on the case are resumed after the obstacles to its consideration have been removed - the circumstances that caused its suspension. The court also issues a ruling on the resumption of proceedings in the case (based on an application from the persons participating in the case, or on its own initiative). It indicates the circumstances indicating that the grounds for suspending the proceedings have disappeared, as well as the time and place of the court hearing, of which all participants in the process are notified.

From the day the proceedings are resumed, the time limits for consideration and resolution of the case are resumed.

Suspension of proceedings should be distinguished from adjournment of trial for a number of reasons.

Firstly, the law contains an exhaustive list of specific grounds for suspending proceedings. In relation to postponement, there is no such list in the law. The law mentions only the most typical cases when adjournment of a case is necessary.

Secondly, as a rule, the purpose of postponing the consideration of a civil case is the need to perform any procedural actions (notify the person participating in the case or another participant in the process about the court hearing, request evidence, etc.). If the proceedings are suspended, on the contrary, the implementation of procedural actions is terminated. However, there are exceptions to this rule. Thus, all actions related to securing a claim or are carried out retain their meaning. In addition, those procedural actions for which the proceedings in the case were suspended are carried out (search for the defendant, examination, etc.).

Thirdly, the suspension of the proceedings is carried out for an indefinite period. This is due to the fact that the court does not know in advance exactly when the circumstances that served as the basis for suspending the proceedings will no longer exist. Adjournment of the trial, on the contrary, is made for a strictly defined period, indicating the exact date of the next trial.

Fourthly, with the suspension of the proceedings, the course of all unexpired procedural deadlines is suspended (Article 110 of the Code of Civil Procedure of the Russian Federation). If the trial of a case is adjourned, the running of the procedural time limits is not suspended.

Fifthly, the decision to suspend the proceedings in the case can be appealed (Article 218 of the Code of Civil Procedure of the Russian Federation). The law does not provide for an appeal against a ruling to postpone the trial of a case.

Jury trial: Video

Opening of proceedings in a case is the stage of civil proceedings at which the court decides on the initiation of proceedings on a specific civil case in the court of first instance, checks whether the person who applied to the court has the right to go to court and compliance with the established procedure for the implementation of this right.
Procedural activities to open proceedings in the court of first instance are of great importance for ensuring the right to judicial protection and the implementation of the entire range of tasks and goals of civil proceedings. It is here that the question of the existence of conditions with which the law binds the very possibility of the emergence of proceedings in a court of general jurisdiction to consider and resolve the merits of a specific civil case is resolved. The presence of such conditions for an interested person to apply for judicial protection and his compliance with the procedure established by law obliges the judge to open proceedings in a civil case by issuing a ruling on accepting the application for court proceedings. Only after this, as a general rule, does it become possible for the entire set of civil procedural legal relations to arise and change in the case.
Consequently, without opening proceedings in a civil case in the court of first instance, judicial protection of violated or disputed rights, freedoms and legally protected interests of citizens and organizations, protection of state and public interests, as well as the achievement of optional goals of legal proceedings are impossible516.
In accordance with the Civil Procedure Code, litigation in a civil case can only be initiated on the basis of a claim filed in court by an interested person or on behalf of an interested person.
In cases established by law, the Commissioner of the Verkhovna Rada of Ukraine for Human Rights, the prosecutor, state authorities, local government bodies, individuals and legal entities can go to court in the interests of an interested person (Part 1 of Article 45 of the Code of Civil Procedure).

In accordance with the principle of discretion in civil proceedings, it is not allowed to open proceedings in a civil case on the court’s own initiative.
The content and significance of the stage of opening proceedings in a case are the same in all types of civil proceedings, in all civil cases.
The claim is brought by filing a statement of claim in the court of first instance, where it is registered, in compliance with the procedure established by the Civil Procedure Code and no later than the next day transferred to a certain judge (Part 1 of Article 118 of the Code of Civil Procedure).
According to Part 2 of Art. 11-1 of the Code of Civil Procedure, statements of claim, complaints, presentations and other procedural documents provided for by law that are submitted to the court and may be the subject of judicial proceedings, in the order in which they are received are subject to
mandatory registration in the court's automated document management system, which is carried out by employees of the relevant court on the day the documents are received. The following must be entered into the court's automated document flow system: the date of receipt of documents, information about the subject of the dispute and the parties to the case, the name of the court employee who carried out the registration, information about the movement of court documents, information about the judge who heard the case, and other data, provided for by the Regulations on the automated document flow system of the court, which is approved by the Council of Judges of Ukraine in agreement with the State Judicial Administration of Ukraine.
The determination of a judge or a panel of judges to consider a specific case is carried out by the court's automated document flow system during the registration of relevant documents according to the principle of reliability, which takes into account the number of cases that are in the proceedings of judges, the prohibition to take part in the review of a decision for a judge who took part in the adoption of a court decision , the revision of which is in question, the stay of judges on vacation, on sick leave, on a business trip and the end of their term of office. Cases are distributed taking into account the specialization of judges. After a judge or a panel of judges has been appointed to consider a specific case, changes to the registration data regarding this case, as well as the removal of this data from the automated document flow system of the court, are not allowed, except in cases established by law (Part 3 of Article 11-1 of the Code of Civil Procedure).
The judge, having familiarized himself with the filed statement of claim, must perform one of the procedural actions provided for by the Civil Procedure Code:
- open civil proceedings (part 1 of article 122 of the Code of Civil Procedure);
- refuse to open proceedings in the case (part 2 of Article 122 of the Code of Civil Procedure);
- leave the statement of claim without movement (part 1 of article 121 of the Code of Civil Procedure);
- return the statement of claim (part 3 of article 121 of the Civil Procedure Code).
A statement of claim is a form established by law of applying to court to resolve a dispute over subjective law.
According to current legislation, a statement of claim is the only way to objectify a claim. The latter can only be known through manifestation in a corresponding statement. The correspondence of the claim and the statement of claim is subject to the dialectic of the relationship between content and form. At the same time, the statement of claim has its own content (details established
law) and written form. The written form of the claim allows you to clearly record the content of the claimed legal claim, its compliance with the law, the time and place of filing the claim, and promptly identify and eliminate shortcomings and errors made by the applicant. Thus, the form of the statement of claim is one of the effective guarantees of the right of the plaintiff and defendant to judicial protection.
According to Article 119 of the Code of Civil Procedure, the statement of claim must contain: 1) the name of the court to which the application is submitted; 2) the name (name) of the plaintiff and defendant, as well as the name of the plaintiff’s representative, if the statement of claim is filed by a representative, their place of residence (stay) or location, postal code, communication numbers, if known; 3) content of the claims; 4) the cost of the claim in relation to claims of a property nature; 5) a statement of the circumstances with which the plaintiff substantiates his claims; 6) indication of evidence confirming each circumstance, the presence of grounds for exemption from proof; 7) list of documents attached to the application.
The statement of claim is signed by the plaintiff or his representative and the date of its filing is indicated (Part 3 of Article 119 of the Code of Civil Procedure). If a claim is filed by persons acting in defense of the rights, freedoms and interests of another person, the application must indicate the grounds for such an appeal (Part 7 of Article 119 of the Code of Civil Procedure). If the statement of claim is filed by a representative of the plaintiff, a power of attorney or other document confirming his authority is attached to the statement of claim (Part 8 of Article 119
Civil Procedure Code).
The above information, which must be included in the statement of claim, can be divided into several groups:
a) information of an introductory nature (name of the court to which the application is filed; name (name) of the plaintiff and defendant, their place of residence or location; price of the claim);
b) information related to the description of the circumstances of the case and the motivation for the stated requirements (facts of the basis of the claim, an indication of the evidence confirming them);
c) information of a operative nature (the plaintiff’s demands to each of the defendants, their content and size, as well as the signature of the person who applied to the court or his representative);
d) additional information (list of applications, other data,
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necessary to resolve the issue of accepting the statement of claim).
Some legal scholars (Vikut M.A., Zaitsev I.M.519, Vlasov A.A.520) divide the details of the statement of claim into constitutive and substantive.

All elements of the application in their entirety should be recognized as constitutive, since without any of them it loses the quality of a civil procedural document. Name of the court, information about the disputing parties,

the signature of the applicant, as well as a document certifying the powers of the judicial representative, define (constitute) the appeal of the interested person as a procedural document. Their absence makes the application legally void, and therefore the judge leaves it without action.
The content consists of information about the dispute about the right to be considered and resolved, the legal claim of the plaintiff and evidence confirming the claims. Any errors in the presentation of this information may lead to the court refusing to satisfy the claim.
The Civil Procedure Code does not require that the statement of claim necessarily contain the legal qualification of the disputed legal relationship, i.e. the plaintiff’s references to the rules of law on which he bases his claim (the so-called legal basis of the claim). However, since the claim is a legal requirement, an indication in the statement of claim of the rules of law on which the plaintiff’s claims are based seems extremely desirable. Statements of claim filed by the Commissioner of the Verkhovna Rada of Ukraine for Human Rights, the prosecutor, state authorities, local government bodies, individuals and legal entities protecting the rights, freedoms and interests of other persons must necessarily contain references to the relevant norms of law.
In addition to general information, the statement of claim for specific categories of cases may contain additional information, which is determined by the specifics of the relevant controversial material legal relations. Thus, in paragraph 6 of the resolution of the Plenum of the Supreme Court of Ukraine No. 5 of April 12, 1996. “On the practice of considering civil cases on claims for the protection of consumer rights” it is stated that the statement of claim must contain information: about what consumer right is violated; when and how did this manifest itself? about the methods of defense that the court must apply; on the amounts of amounts in respect of which the claims are made, with relevant calculations and justifications; about the evidence that supports the claim. The application must be accompanied by the necessary documents, depending on the stated requirements (invoices, agreement, order receipt, commitment receipt, transport or other invoice, check, cash receipt).
A statement of claim for the protection of the dignity and honor of an individual must contain, in particular, information about the manner in which information violating the personal non-property rights of the plaintiff was disseminated, what information was disseminated by the defendant(s), indicating the time, method and persons to whom such information is provided, other circumstances of legal significance, references to evidence that confirm each of such circumstances, as well as an indication of the method of defense by which the plaintiff wishes to protect his violated right.521

The application for divorce must indicate the date and place of registration of the marriage, the reasons for its dissolution, and whether there are any minors from the marriage
children, with which parent they are, proposals regarding the participation of spouses in the maintenance and upbringing of children after divorce, whether other demands are made that can be resolved simultaneously with the claim for divorce522.
The statement of claim is accompanied by documents confirming payment of the court fee and payment of expenses for information and technical support for the consideration of the case (Part 5 of Article 119 of the Code of Civil Procedure). In addition, the plaintiff is obliged to attach to the statement of claim copies of it and copies of all documents attached to it, in accordance with the number of defendants and third parties (Part 1 of Article 120 of the Code of Civil Procedure).
Failure to comply with the required requirements for the form and content of the statement of claim, for obvious reasons, prevents the start of the process, since the court does not have the necessary information to initiate the case. The Civil Procedure Code establishes a special procedural institution, the use of which makes it possible to ensure that the shortcomings of the statement of claim are eliminated in the shortest possible time - the institution of leaving the statement of claim without progress.
In accordance with Article 121 of the Code of Civil Procedure, the statement of claim is left without progress in the following cases:
1) if it is submitted without complying with the requirements set out in Articles 119 and 120 of the Code of Civil Procedure.
The basis for leaving the statement of claim without progress can only be the deficiencies of the statement of claim directly indicated in the law. In particular, a statement of claim cannot be left without progress if evidence, both specified in the statement of claim and other evidence to be presented by the plaintiff in the opinion of the court, is not attached to it.
2) if the court fee has not been paid or the costs of information and technical support for the consideration of the case have not been paid.
The statement of claim is left without progress if the plaintiff has not paid the court fee before going to court, or has paid it due to an arithmetic error, incorrect determination of the cost of the claim, or for other reasons in a smaller amount than required by law, or a document confirming payment of the court fee is not attached to statement of claim, or not the original, but a copy of such a document is attached.

On leaving the statement of claim without progress, the court issues a reasoned ruling, which indicates the specific circumstances that served as the basis for leaving the statement of claim without progress. The ruling is sent or handed to the plaintiff. In the ruling, the court sets a period for the person who applied to the court to identify deficiencies, which cannot exceed five days from the date the plaintiff receives the ruling (Part 1 of Article 121 of the Code of Civil Procedure). This period is determined at the discretion of the court and must
provide the person who applied to the court with the opportunity to actually correct the shortcomings committed523.
If the plaintiff, in accordance with the court's ruling, fulfills the requirements specified in Articles 119 and 120 of the Code of Civil Procedure within the prescribed period, pays the amount of the court fee, and also pays the costs of information and technical support for the consideration of the case, the statement of claim is considered filed on the day of its initial submission to the court. Otherwise, the application is considered not submitted and is returned to the plaintiff (Part 2 of Article 121 of the Code of Civil Procedure).
Leaving the statement of claim without progress is possible only until the commencement of proceedings in the case. After the court has issued a ruling to initiate proceedings in the case, it is impossible to leave the statement of claim without progress. Deficiencies identified later are corrected at subsequent stages of the process, for example in the form of clarification of the claims when preparing the case for trial or in court proceedings.
Acceptance of the claim. The judge opens proceedings in a civil case only on the basis of an application submitted and executed in the manner established by the Code of Civil Procedure (Part 1 of Article 122 of the Code of Civil Procedure).
The procedural task solved by the judge is checking the grounds for accepting the application. If there are no such grounds, the judge refuses to accept the application, guided by the reasons specified in Article 122 of the Code of Civil Procedure. Within the framework of the grounds for refusal to initiate a case, two groups of motives are combined: the prerequisites for the right to claim and the conditions for its implementation. The absence of prerequisites makes it objectively impossible to consider the case; the process cannot be started at all. Failure to comply with the procedure for filing a claim is only a temporary obstacle that can be eliminated by the interested party, after which the process of the case is possible.
According to Part 2 of Article 122 of the Code of Civil Procedure, a judge refuses to accept an application in the absence of at least one of the prerequisites for the right to file a claim, namely:

1) the application is not subject to consideration in courts in civil proceedings;
2) there is a court decision or ruling that has entered into legal force to terminate the proceedings in connection with the plaintiff’s refusal of the claim or the conclusion of a settlement agreement between the parties to the dispute between the same parties, on the same subject and on the same grounds. Refusal of a claim does not deprive the other party of the right to bring the same claim against the person who renounced the claim;
3) in the proceedings of this or another court there is a case regarding a dispute between the same parties, about the same subject and on the same grounds;
4) there is a decision of the arbitration tribunal, adopted within its competence, on a dispute between the same parties, on the same subject and on the same grounds, except in cases where the court refused to issue a writ of execution to enforce the arbitration tribunal’s decision or canceled the decision
arbitration court and consideration of the case in the same arbitration court turned out to be impossible;
5) after the death of an individual, as well as in connection with the termination of a legal entity that is one of the parties to the case, disputed legal relations do not allow succession.
It is unacceptable to refuse to open proceedings on the grounds that the stated claim has not been proven, the statute of limitations has passed, or other grounds not provided for by law. In particular, it is unacceptable to refuse to accept an application for the reason that the disputed claim is not protected by law or that it is clearly not justified (so-called pointless claims); the absence of a law regulating the disputed relationship cannot also serve as a basis for refusal to accept a claim.
Filing a claim against an improper defendant is not a basis for refusing to open proceedings in the case or leaving the application without progress, since the replacement of an improper defendant is carried out in the manner established by Art. 33 Code of Civil Procedure. If the rule of substantive law, which is subject to application at the request of the plaintiff, indicates that liability should be borne by another person, and not the one against whom the claim is brought, and the plaintiff does not agree to replace him, the court involves another person in the case. person as a co-defendant on his own initiative. After replacing a non-inappropriate defendant or attracting a co-defendant, the case is considered first in case of its postponement or at the request of a new defendant or an involved co-defendant, and based on its results, the court rejects the claim against the improper defendant and makes a decision on the merits of the stated requirements regarding the appropriate
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defendant.
The judge resolves the issue of refusal to open proceedings in the case no later than three days from the date of receipt of the application to the court or the expiration of the period established for eliminating deficiencies (Part 4 of Article 122 of the Code of Civil Procedure).
When refusing to accept a statement of claim, the judge issues a reasoned ruling, which the plaintiff can appeal (clause 4, part 1, article 293 of the Code of Civil Procedure). The ruling to refuse to open proceedings in the case must be immediately sent to the plaintiff along with the application and all documents attached to it.
A refusal to open proceedings in a case prevents a repeated filing with the court with the same claim (Part 6 of Article 122 of the Code of Civil Procedure).
The return of the statement of claim is made by the judge in cases of non-compliance with the conditions for filing the claim, the procedure for filing it, and failure to comply with the requirements to eliminate violations of the procedure and form for filing the statement of claim.

In accordance with Part 3 of Article 121 of the Code of Civil Procedure, the application is returned in the following cases: 1) the plaintiff, before the opening of proceedings in the case, filed an application for the return of the claim to him;
2) the application was submitted by an incapacitated person;
3) the application on behalf of the plaintiff was filed by a person who does not have the authority to conduct the case;
4) the case is not within the jurisdiction of this court;
5) an application for divorce was filed during the wife’s pregnancy or before the child reaches one year without complying with the requirements established by the Family Code of Ukraine.
The judge issues a ruling on the return of the statement of claim, in which he indicates which court the applicant should apply to if the case is not within the jurisdiction of this court, or how to eliminate the circumstances preventing the initiation of the case.
The return of the statement of claim does not prevent the repeated filing of the statement with the court if the circumstances that became the basis for the return of the statement cease to exist (Part 5 of Article 121 of the Code of Civil Procedure).
An appeal may be filed against the judge’s decision to return the application (Clause 3, Part 1, Article 293 of the Code of Civil Procedure).
The judge resolves the issue of opening proceedings in the case no later than three days from the date of receipt of the application to the court or the expiration of the period established for eliminating deficiencies (Part 4 of Article 122 of the Code of Civil Procedure).
The ruling on opening proceedings in the case shall indicate: 1) the name of the court, the surname and initials of the judge who opened the proceedings in the case, and the case number; 2) by whom and against whom the claim was brought; 3) content of the claims; 4) the time and place of the preliminary court hearing, if the judge decided that holding it is necessary, or the time and place of the court hearing of the case, if the judge decided that holding a preliminary court hearing in the case is not necessary; 5) an invitation to the defendant to submit, within a specified period, written objections to the claim and references to the evidence with which they are substantiated (Part 5 of Article 122 of the Code of Civil Procedure).
Legal consequences of opening proceedings in the case. The initiation by a court of proceedings in a civil case entails certain legal consequences, which by their nature can be divided into procedural and substantive legal.
Procedural consequences include:
1) the emergence of a process in a specific civil case (interested persons become participants in civil procedural legal relations, acquire procedural rights and obligations);
2) the loss by the interested party of the right to choose the place of consideration of the case under alternative jurisdiction (Article 110 of the Code of Civil Procedure) and the loss of the parties’ right to choose the place of consideration of the case provided for by the rule of contractual jurisdiction (Article 112 of the Code of Civil Procedure);
3) from this moment the defendant acquires the right to file a counterclaim (Article 123 of the Code of Civil Procedure).
The material and legal consequences of filing a claim include the following:
1) interruption of the limitation period (part 2 of article 264 of the Civil Code);
2) alimony is awarded by court decision from the date of filing the statement of claim (Part 1 of Article 79 of the Criminal Code);
3) losses are determined taking into account market prices that existed on the day the debtor voluntarily satisfied the creditor’s claim in the place where the obligation must be fulfilled, and if the demand was not satisfied voluntarily, on the day the claim was filed, unless otherwise established by the contract or law (Part 3 Article 623 Civil Code);
4) the owner of the property has the right to demand from a bona fide purchaser the transfer of all income from the property that he received or could receive from the moment when he learned or could find out about the illegality of possession of it, or from the moment when he was served with a subpoena for the case in the lawsuit owner to reclaim property (Part 2 of Article 390 of the Civil Code).
The law may establish other material and legal consequences of filing a claim in court.
Persons participating in the case who believe that it is impossible to present the necessary evidence, or who experience difficulties in presenting this evidence, have the right to file a petition to secure this evidence.
Providing evidence is the prompt securing, in the manner established by civil procedural law, of information about facts, carried out by a judge for the purpose of using them as evidence when considering and resolving civil cases in court525.
The need to provide evidence arises, for example, when perishable products that lose their appearance and properties are used as material evidence (Article 141 of the Code of Civil Procedure); when the witness is about to leave for a remote area and his poor state of health gives reason to assume the possibility of death; the possibility of destruction or disappearance of the object of examination, etc.
Securing evidence is an exceptional way of collecting evidence. It consists in the fact that the judge examines and perceives the data that the applicant intends to present to the court as evidence, records the results of this research, making them available to the court, which will subsequently consider the case on the merits526.
The way the court provides evidence is:
1) interrogation of witnesses. According to Art. 136 of the Civil Procedure Code, the application to call a witness shall indicate his name, place of residence (location) or place of work, circumstances that he can confirm;
2) appointment of an examination (Articles 143-145 of the Code of Civil Procedure);
3) request and (or) inspection of evidence, including at its location (Article 137, Article 140 of the Code of Civil Procedure).

An inspection is a procedural action aimed at finding relevant factual data by reviewing the state and signs of various objects of reality, including
using scientific and technical means (lighting, optical,
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measuring instruments).
If necessary, including at the request of a person participating in the case, witnesses, translators, experts, specialists may be brought in to participate in the inspection of evidence at their location, and photography, sound and video recording may also be carried out.
A protocol on the inspection of evidence at its location is drawn up, signed by all persons participating in the inspection. Attached to the protocol along with the inventory are all plans, drawings, copies of documents drawn up or collated during the on-site inspection, as well as photographs of written and material evidence taken during the inspection, video recordings, etc.
Persons participating in the inspection of evidence at their location have the right to make their comments regarding the inspection protocol (Article 140 of the Code of Civil Procedure).
In civil proceedings, inspections can be classified: 1) depending on the object (inspections of premises, terrain, vehicles, objects, etc.); 2) places of inspection (inspections on site and in court); 3) the time of the inspection (inspections during the trial, preparation for the trial, before the initiation of the case in order to secure evidence).
If necessary, the court may use other methods of securing evidence.
At the request of the interested person, the court may provide evidence before filing a claim. If an application for securing evidence is filed before filing a statement of claim, the applicant must file a statement of claim within ten days from the date of the ruling on securing evidence. In case of failure to file a statement of claim within the specified period, the person who filed the application for securing evidence is obliged to compensate court costs, as well as losses caused in connection with securing evidence.
The application for securing evidence must indicate:
- evidence to be provided;
- circumstances that can be confirmed by this evidence;
- circumstances indicating that the presentation of the necessary evidence may become impossible or difficult, as well as the case for which this evidence is needed or for what purpose it must be provided.
An application for securing evidence that does not meet the requirements of the law is subject to the consequences established by Article 121 of the Code of Civil Procedure (leaving the application without progress, returning the application).

An application for securing evidence is considered by the court hearing the case, and if the claim has not yet been filed, by the local general court, in
within the territorial jurisdiction of which procedural actions to secure evidence can be taken.
An application for securing evidence is considered within five days from the date of its receipt with notification of the parties and other persons participating in the case. The presence of these persons is not required.
In the event of a justified demand by the applicant, and also if it is impossible to establish against whom the claim may subsequently be brought, the application for securing evidence is considered by the court without delay only with the participation of the applicant.
The issue of securing evidence is resolved by determination. An appeal against a ruling on securing evidence does not suspend its execution, nor is it an obstacle to the consideration of the case.
If, after completing procedural actions to secure evidence, a statement of claim is filed in another court, protocols and other materials to secure evidence are sent to the court hearing the case (Article 135 of the Code of Civil Procedure).

More on topic 1. Opening of proceedings in the case:

1. The procedure used in the bankruptcy process of credit institutions. Grounds and consequences of opening bankruptcy proceedings
2. Opening of proceedings on the case; pre-trial proceedings; trial; consideration of the case in absentia; judgment

Suspension of proceedings in a civil case is applied in the event of obstacles to the consideration of the case by the court. In this case, the court temporarily suspends all procedural actions in the case. Suspension of proceedings in a case entails the suspension of all procedural deadlines until the resumption of proceedings. During the period of suspension of proceedings in a case, the court does not perform any procedural actions, with the exception of monitoring the circumstances that caused the suspension, as well as considering issues and providing evidence in the case. The grounds for suspending the proceedings, specified in Articles 215-216 of the Civil Procedure Code of the Russian Federation, are divided into those mandatory for the court and those applied at the discretion of the court.

Suspension of the proceedings is mandatory for the court

In the event of the death of a citizen, reorganization of a legal entity, if the disputed legal relationship allows for succession, the proceedings must be suspended. Succession provides for the possibility of transferring rights and obligations from a party to a case to his successor. The conclusion about the possibility of succession will be made by the court on the basis of the substantive law and examination of the evidence presented. The evidence in this case will be a death certificate or a court decision declaring the citizen dead; documents confirming the presence of heirs of the deceased. Succession on such material grounds as assignment of the right of claim or transfer of debt does not entail suspension of the case, since it is possible to involve a successor and postpone the court hearing for a short period of time necessary for preparation.

Or the absence of a legal representative of a person declared incompetent is grounds for the suspension of proceedings. Recognition of a citizen as incompetent or partially capable occurs in a special proceeding on the basis of a court decision; the basis for suspending the proceedings will be a court decision recognizing the citizen as incompetent or partially capable. The basis for suspending the proceedings will be an application to the court by the interested person. A court decision declaring a citizen incompetent or partially capable is sent to the guardianship and trusteeship authority and is the basis for the appointment of a guardian or trustee. In the absence of a legal representative-citizen, a guardianship authority may be involved as a representative.

Participation of the defendant in hostilities, performance of tasks in conditions of emergency or martial law, as well as in military conflicts; or a request from a plaintiff participating in hostilities or performing tasks in a state of emergency or martial law, as well as in military conflicts - another mandatory basis for the court to suspend proceedings in a civil case. If the plaintiff is involved in such actions, then in order to suspend the proceedings it is necessary to file a petition containing such a request. To carry out such actions, the party must have the status of a military serviceman, an employee of the competent authorities, who, due to the tasks assigned to them, have the right to participate in such actions, they must be subject to the relevant laws. For ordinary citizens, the fact of participation in hostilities is not grounds for suspending the proceedings. The evidence will be documents confirming service and a travel certificate or order of assignment to participate in such an event.

The impossibility of considering a case before the resolution of another case being considered in civil, administrative or criminal proceedings. In this case, the mandatory suspension arises if the cases are related. The facts considered in other civil, criminal or administrative proceedings must be relevant to the civil process that is subject to stay. In addition, these facts will be binding on issues of circumstances established by the court in relation to the persons participating in these cases. A court ruling on another case is presented as evidence, confirming that such a case is being resolved by the court. If the case is being processed by other authorities, the civil case cannot be suspended.

An appeal by the court to the Constitutional Court of the Russian Federation with a request regarding the compliance of the law to be applied with the Constitution of the Russian Federation. When establishing the need to verify the compliance of the law to be applied with the Constitution of the Russian Federation, the court must issue a reasoned ruling on this. This is the last condition for the mandatory stay of proceedings by the court.

Suspension of proceedings at the discretion of the court

The party is in a medical facility. Staying in a medical institution involves inpatient treatment of the party. If illness prevents a party from participating in the trial, but treatment is provided on an outpatient basis, the case may be adjourned if appropriate evidence is presented. In the same way, the issue should be resolved if it turns out that the period of stay of the participating party in a medical institution (examination, completion of an annual treatment course, etc.) is not presumptive, but is known exactly or can only be a short period of time. The basis for suspending the proceedings must be a medical document confirming the citizen’s placement in a medical institution for an indefinite period.

Search for the defendant. A search for the defendant is possible in cases where his place of residence is unknown for claims made in defense of the interests of the Russian Federation, constituent entities of the Russian Federation, municipalities, as well as for claims for the collection of alimony, compensation for damage caused by injury, or damage to health, or the death of the breadwinner. A search for the defendant may be announced by the court if it is impossible to make a decision using the provisions of Article 119 of the Civil Procedure Code, when information is received about the unknown location of the defendant from the last known place of residence and the appointment of a lawyer.

Appointment of an expert examination by the court. Conducting a forensic examination is associated with the need to obtain special knowledge for the correct consideration and resolution of the case. An examination is appointed, as a rule, at the request of the parties, in order to present evidence on the assigned legally significant circumstances in the case. In this case, the court may suspend the proceedings if the examination requires significant time.

Appointment by the guardianship authority to examine living conditions in cases affecting the interests of children. The appointment by the guardianship and trusteeship body of an inspection of the living conditions of adoptive parents is mandatory in cases of adoption of a child, as well as in other cases affecting the rights and legally protected interests of children. Basically, these are cases in which, by virtue of current legislation, the participation of the guardianship and trusteeship authority is mandatory, and in which the future fate of the children is determined. As a rule, such a suspension is associated with existing doubts when preparing a conclusion on the case by the guardianship authority.

Sending a court order by the court. A writ is necessary if the evidence is located in another area and it is difficult for the court hearing the case to obtain it. The most common case of sending a letter of request is at the place of their residence, since the travel of witnesses to participate in a court hearing entails serious financial costs. In addition, by court order you can request documents that are stored in medical institutions or internal affairs bodies; documents that can only be requested in the form of a duly certified copy. The need for a writ petition arises when a person is in prison.

Resumption of proceedings in the case

The proceedings are resumed when the circumstances that caused its suspension have been eliminated. The court must make a ruling on the resumption of proceedings in the case. A determination to suspend proceedings in a case may be by filing a private complaint. After the resumption of proceedings, the civil case is considered by the court in accordance with the general procedure. After the resumption of proceedings, the court can perform all procedural actions without any restrictions.

In Art. 74 of the Code of Criminal Procedure of the Russian Federation stipulates that the conclusion and testimony of an expert are one of the types of evidence in a criminal case, along with other evidence. Nevertheless, modern pre-trial criminal proceedings are based precisely on the results of forensic examination. For example, for the purpose of collecting and checking the evidence available in a criminal case, the correct qualification of the committed criminal act, etc. An analysis of investigative practice shows that in almost every criminal case investigated both in the form of a preliminary investigation and inquiry, a forensic examination is appointed either on the initiative of investigator (inquirer), less often - the victim, or at the request of the suspect (accused), their defense attorney. In 90% of criminal cases in which a forensic examination was carried out, the evidence base for accusing a person of committing a crime is based mainly on the expert’s opinion. Malysheva, O.A. Procedural problems of appointment and production of forensic examination / O.A. Malysheva // Forensic examination. - 2009. - No. 2. - P. 21.

The appointment of an examination in a preliminary investigation is a procedural action that is implemented subject to compliance with the grounds and conditions specified by law. It is not limited to drawing up a resolution on conducting an examination, although it is the only legal basis for its conduct. Nazarov, V.A. Appointment and conduct of examination in criminal proceedings: Author's abstract. dis...cand. legal sciences; Specialist. 120009 - Criminal process, criminology, theory of operational-search activity / V.A. Nazarov. - Ekaterinburg: B.I., 1999. - P.13.

So, for example, in a criminal case against B., accused of committing a crime under Part 1 of Art. 264 of the Criminal Code of the Russian Federation, at the stage of preliminary investigation two forensic medical examinations were carried out in relation to the victim D.

Initially, the expert concluded that the medical documents submitted by the victim did not reveal information about the presence of bodily injuries; The victim’s existing illness – spondyloarthrosis and deforming spondylosis of the lumbar spine – contributed to her seeking medical help. As indicated in the descriptive part of the report, when conducting the study, the expert used consultations with specialist radiologist Ch.

An additional forensic examination was then ordered. The same expert in his conclusion indicated that a control X-ray examination revealed bone disorders in the form of a fracture of the rib on the right and the transverse process of the third lumbar vertebra on the left; These fractures are the result of the impact of blunt, hard objects, and they can be caused by the protruding parts of a moving car. The descriptive part of the report also indicated that the expert used consultation with a specialist radiologist.

During the trial of the case, the defense cast doubt on all the conclusions of the forensic expert who conducted the examination at the stage of the preliminary investigation due to his incompetence, and also due to the fact that in fact the expert examination was carried out by a person who was not a participant in the criminal proceedings - a radiologist invited to participate in the examination by the experts themselves.

The court agreed with the arguments of the defense and ordered a commission forensic medical examination in the case with the participation of a radiologist. The experts came to the conclusion that in the conditions of the road traffic accident, the victim suffered bodily injuries in the form of a bruise on the back surface of the body, which caused an aggravated and prolonged manifestation of a pre-existing chronic disease, which was in no way the root cause of its formation from the accident.

As a result, the court issued an acquittal against B. Fomin, M.A. Expert opinion as evidence for the defense / M.A. Fomin // Criminal process. - 2008. - No. 7. - P. 40.

Due to the lack of clear and comprehensive legal regulation of the examination at the stage of initiating a criminal case in law enforcement practice, serious problems arise in the preliminary study of micro-objects, this is especially true for narcotic, psychotropic and potent substances.

The identified problem exists due to the fact that the current criminal procedural legislation superficially regulates the conduct of an examination at the stage of initiating a criminal case as an urgent investigative action. In Part 4 of Art. 146 of the Code of Criminal Procedure of the Russian Federation states that in the case of individual investigative actions to consolidate traces of a crime and identify the person who committed it (inspection of the scene of the incident, examination, appointment of a forensic examination), relevant protocols and resolutions are attached to the investigator’s resolution. It turns out that at the stage of initiating a criminal case, an examination can only be appointed, and carried out only after the initiation of a criminal case. Thus, one investigative action is “stretched” into two independent stages of criminal proceedings. But during this time, research objects may be lost or they will have to be examined twice. In addition, it can hardly be considered expedient to move from one stage to another if the verification, and even more so investigative actions, planned and started in the previous stage, are not brought to their logical (not to mention procedural) completion.

Thus, Yu. Orlov believes that the procedural regulation of the conduct of a forensic examination at the stage of initiating a criminal case is not the only example of the low quality of legislative technology, the result of which is a contradiction between the letter of the law and its meaning. The meaning of Part 4 of Art. 146 of the Code of Criminal Procedure of the Russian Federation is that the conduct of a forensic examination before the initiation of a criminal case is allowed for the sole purpose of establishing the presence or absence of grounds for initiating a criminal case. Therefore, the appointment of an examination without obtaining a conclusion at this stage loses all meaning. Orlov, Yu. Is it possible to conduct a forensic examination at the stage of initiating a criminal case? / Yu. Orlov // Legality. - 2003. - No. 9. - P. 20.

According to V. Isaenko, this aspect should be considered both from the point of view of common sense and certainly from the point of view of legality. A criminal case can be initiated only if there are grounds and grounds provided for by law. The latter are considered signs of a crime, information about which is recorded in the relevant materials. A crime report is checked to detect these signs. Therefore, it is paradoxical to say that it is possible to order an examination before the initiation of a case, but it should be carried out only after the initiation of a case. With this approach, it turns out that in order to carry out procedural actions to detect signs of a crime, the subject of criminal proceedings is obliged to initiate a criminal case without having established signs of a crime, i.e. having no grounds for this, and therefore acting illegally. Isaenko, V. Using the capabilities of forensic examination in detecting signs of a crime / V. Isaenko // Legality. - 2007. - No. 2. - P. 6.

Thus, in criminal case No. 1234/2005, initiated by the investigation department of Sheremetyevo Customs on the discovery of 350 grams of white powder in the possession of Austrian citizen F., the examination was carried out on the second day, the powder turned out to be a harmless non-narcotic reagent. And as a result, a decision was made to terminate the criminal case and criminal prosecution.

If legal relations related to the examination at the stage of initiating a criminal case were properly regulated by criminal procedural legislation, many problems of law enforcement practice could be avoided. Saushkin, S.A. Proceedings before the initiation of a criminal case / S.A. Saushkin // Russian investigator. - 2005. - No. 9. - P. 12.

The possibility of appointing and conducting an examination at this stage was proposed to be allowed by such scientists as B.M. Komarintsev, E.M. Svetlakov, Yu.D. Fedorov. I.I. Martinovich proposed to allow examinations to be carried out in urgent cases (in order to prevent the loss of objects, modification of the properties of research objects).

One should agree with the opinion of the majority of scientists who come to the conclusion that the possibility of actually appointing and conducting forensic examinations before initiating a criminal case is not ensured by the legislator. Borzov, V. Labyrinths of the first procedural stage / V. Borzov // Criminal law. - 2005. - No. 2. - P. 74. A. Naumov believes that conducting a forensic examination in relation to participants at the stage of initiating a criminal case will lead to the receipt of unacceptable evidence, since this violates the requirements of the Code of Criminal Procedure of the Russian Federation. Naumov, A. Criminal prosecution at the stage of initiating a criminal case / A. Naumov // Legality. - 2005. - No. 3. - P. 50.

The investigator appoints an examination in cases where special knowledge in science, technology, art or craft is needed and its implementation is tactically feasible and possible (objects of future research have been collected, an expert institution or a specific expert has been identified, questions have been formulated, etc.). An examination should not be ordered when it is intended to obtain information about facts reliably established by other means of evidence, but at the same time, if the data obtained during other investigative actions raise doubts or are based only on the confession of the accused, an examination should be appointed . Thus, in practice, one can very often observe facts of the accused admitting to signing a document at the stage of preliminary investigation and refusing to do so at the stage of trial.

The Code of Criminal Procedure does not establish the moment when an examination is ordered. It cannot be reduced only to writing a resolution ordering an examination. In each specific case, taking into account the circumstances of the case under investigation and the importance of the fact established through the examination. When deciding whether to order an examination, the investigator must take into account not only the features of the case under investigation, but also its prospects.

A decision to order an examination is possible only in a criminal case. However, in the legal literature and in practice, the issue of conducting an examination in parallel with the inspection of the crime scene has increasingly begun to be raised. One such form of research is a “preliminary study” of traces at the scene of the incident.

Preliminary research is called expert research due to the following circumstances: a) the expert is knowledgeable persons, any of their participation is caused by the need for the applied application of the special knowledge that they possess; b) the basis for a preliminary investigation of objects (not procedural, but organizational) is the initiative of the person conducting operational-search activities; c) the result of the research is a written document.

A creative attitude to work in expert investigative practice always gives positive results.

Thus, in a criminal case of the murder of a police officer, the investigative authorities established that the victim was struck with several objects, including a brake pad (on a railroad). The brake pad, identified individually as the murder weapon, was not found. The investigator made a correct and justified decision in this situation: during an additional examination, an ordinary, standard brake pad was removed from the scene of the incident, which could practically not differ in any way from the one that became the murder weapon. This block was presented to the expert commission to resolve the issue of the possibility of causing some of the damage with a similar object. The commission's findings were positive.

The defense filed a motion regarding the inadmissibility of such evidence in the case (expert opinion) due to the fact that it was not the murder weapon that was being examined. During the preliminary hearing in the case, the state prosecutor substantiated his position based on the above. The court agreed with the opinion of the state prosecutor. A court verdict has been issued in the case. Pysina, G. The value of the expert’s opinion on the case / G. Pysina // Legality. - 2003. - No. 9. - P. 27.

E.P. Grishina believes that the theoretical and legal design of “preliminary expert examination of objects” is not entirely successful. An expert cannot conduct research, much less draw up his conclusion at the scene of the incident. In the case under consideration, it is more correct to talk about research (special, but not expert), which it is advisable to entrust to a specialist rather than an expert. In addition, according to the current Code of Criminal Procedure, a specialist is involved in participation in procedural actions to assist in the detection and confirmation of the seizure of objects and documents. A specialist can examine these documents and give a specialist opinion, which will not be of the nature of inferential knowledge, in the sense that is acceptable for an expert opinion. Grishina, E.P. Non-procedural forms of using special knowledge in solving and investigating criminal cases (current problems of theory and practice) / E.P. Grishina // Law and politics. - 2007. - No. 1. - P. 98.

And in the end, I would like to say that the presented issue of conducting a forensic examination before initiating a criminal case can be resolved as follows. Such proceedings should be allowed only in cases where, without an examination, it is impossible to establish the existence of grounds for initiating a criminal case. Namely: before initiating a criminal case, a forensic examination must be allowed to establish the cause of death, the nature and extent of harm caused to health, as well as to study the properties of the subject of the crime directly specified in the relevant article of the Criminal Code (drugs, weapons, etc.), if for this Special knowledge is required. In all other cases, a forensic examination can be carried out only after the initiation of a criminal case.