Legal life hack. How can one be guaranteed to force the court to pay attention to the legal position set out in a separate court decision of the RF Supreme Court? The court did not take into account the convictions of the Bashkir motorist Prospects for cassation appeals

When drawing up contractual relations, counterparties must clearly understand with whom they are concluding an agreement and check the authority of the person signing it, since signing by an unauthorized person gives rise to rights and obligations only for this person, unless another person (represented) subsequently directly approves this transaction. The given example of judicial practice clearly shows the groundlessness of the defendant’s arguments about the invalidity of the transaction due to the signing of the agreement by the director of the branch, who has a power of attorney.

On 02.02.2016, the Economic Court of the Minsk Region considered the case on the claim of the limited liability company “A” against the open joint-stock company “O” for the recovery of 118,601,322 Belarusian rubles, of which 56,095,640 Belarusian rubles. principal debt, 14424388 Belarusian rubles. fines, 48081294 Belarusian rubles. interest for the use of other people's funds in connection with the defendant's improper fulfillment of obligations under supply agreement No. 14/04 dated July 14, 2015, in accordance with the terms of which goods were delivered to the defendant under a bill of lading dated July 17, 2015 No. 0367878 for the total amount 66095640 BYR

The plaintiff supported the claims in full at the court hearing on the grounds specified in statement of claim.

The defendant, duly notified of the time and place of the trial, did not appear in court. A response was received from the defendant in which he asked to hold a court hearing in the absence of the defendant’s representative. He petitioned to reduce the stated amount of penalties and interest for the use of other people's funds. The petition was accepted by the court for consideration.

In the previously submitted response dated December 2, 2015 No. 01-13/2698, the defendant asked the court to refuse to satisfy the plaintiff’s demands for the recovery of 14,124,388 Belarusian rubles. fine, 48081294 BYR. interest for the use of other people's funds, since he believed that the agreement on behalf of the defendant was signed by an unauthorized person - the head of the branch. The defendant, referring to Article 168 Civil Code of the Republic of Belarus (hereinafter referred to as the Civil Code), believes that the conditions provided for in paragraphs 5.2 and 5.3 of Agreement No. 14/04 dated July 14, 2015, were not agreed upon by the parties.

According to part three of Article 177 of the Economic Procedural Code of the Republic of Belarus (hereinafter referred to as the CPC), if the defendant, duly notified of the time and place of the trial of the case, fails to appear at the court hearing of the court considering economic cases, the court considering economic cases conducts the trial of the case in its absence, unless otherwise established by the COD.

According to part five of Article 186 of the Code of Criminal Procedure, persons participating in the case and their representatives who did not appear at the court hearing after the announced break, as well as those who left the courtroom before the end of the consideration of the case, are recognized as having been properly notified. Further proceedings are carried out in their absence.

Under such circumstances, the court came to the conclusion that it was possible to consider the case in the absence of the defendant’s representative.

Having heard the plaintiff’s position and examined the case materials, the economic court established the following circumstances.

Between the plaintiff and the defendant (represented by the construction department No. 170 of OJSC "O"), a supply agreement No. 14/04 dated July 14, 2015 (hereinafter referred to as the Agreement) was concluded, in accordance with clause 1.1 of which the supplier (plaintiff) supplies, and the buyer (defendant) accepts and pays for the following products: polystyrene foam thermal insulation boards of the brands PPT-10-A-R, PPT-15-A-R, PPT 20-A-R, PPT-25-A-R, PPT-35-A-A, PPT -15-NA-R, PPT-20-NA-R, PPT-25-NA-R, PPT-35-NA-R in quantities and at prices specified in the protocol for agreeing on free selling prices and the invoice, which is an integral part of part of the Agreement.

On July 14, 2015, the parties signed Protocol No. 829 on the approval of free selling prices for goods, in which they agreed on the name, quantity, price and value of the goods to be supplied.

In pursuance of the terms of the Agreement, the plaintiff delivered goods to the defendant according to the consignment note dated July 17, 2015 N 0367878 for a total amount of 66,095,640 Belarusian rubles.

The defendant accepted the goods, there were no claims regarding the quality, quantity or price of the goods, which is confirmed by the receipt mark on the delivery note and the subsequent partial payment for the goods.

According to Article 290 of the Civil Code, obligations must be fulfilled properly in accordance with the terms of the obligation and the requirements of the law, and in the absence of such conditions and requirements - in accordance with the requirements usually presented.

By virtue of Article 288 of the Civil Code, obligations arise from the contract.

In accordance with paragraph 1 of Article 486 of the Civil Code, the buyer pays for the supplied goods in compliance with the procedure and form of payment provided for in the supply agreement. If the procedure and form of settlements are not determined by agreement of the parties, then settlements are carried out by payment orders.

In clauses 4.2 and 4.3 of the Agreement, the parties determined the settlement procedure, namely: the buyer (defendant) pays the supplier (plaintiff) for products in accordance with the protocol for agreeing on free selling prices for products and the invoice, which are an integral part of the Agreement. Payments are made within 30 calendar days from the date of shipment of the products by depositing funds by the buyer (defendant) into the bank account of the supplier (plaintiff).

The defendant does not properly fulfill its obligations to pay for the goods delivered. The payment was made by the defendant partially by payment order dated 08/21/2015 No. 536 in the amount of 10,000,000 Belarusian rubles.

As of the date of consideration of the case on the merits under the Agreement, the defendant has not repaid in full and amounts to 56,095,640 Belarusian rubles. Thus, the economic court comes to the conclusion that the defendant improperly fulfilled its obligations under the Agreement.

The court does not take into account the defendant’s arguments about the non-conclusion of the Agreement due to its signing by an unauthorized person and, as a consequence, the inconsistency of the terms of liability in the event of non-fulfillment or improper execution of the Agreement, since these circumstances are not confirmed by the case materials.

Article 184 of the Civil Code determines that in the absence of authority to act on behalf of another person or when such authority is exceeded, a transaction is considered to be concluded on behalf and in the interests of the person who completed it, unless another person (represented) subsequently directly approves this transaction. Subsequent approval of the transaction by the represented creates, changes and terminates for him civil rights and obligations under this transaction from the moment of its completion.

The case materials contain a copy of power of attorney No. 28 dated June 30, 2015, which was issued to the head of the construction department branch No. 170 of OJSC “O”. Clause 8 of the said power of attorney granted the head of the branch the right, on behalf of the defendant, to sign, conclude, and amend agreements and contracts necessary for the activities and functioning of the company.

In addition, the evidence presented in the case confirms the fact that the defendant approved the disputed transaction by taking actions to execute it. In particular, in the case materials there is a consignment note dated July 17, 2015 N 0367878 and a power of attorney for receipt of inventory items dated July 15, 2015 N 204, issued to the financially responsible employee of the defendant, in which reference is made to the agreement dated April 14, 2015 N 14 /04; the goods were used in the activities of the defendant (its structural unit), which is not disputed by the defendant; objections and claims regarding the goods supplied by the defendant were not presented to the plaintiff.

The goods received by the defendant under the specified consignment note within the framework of the disputed agreement were partially paid in the amount of 10,000,000 Belarusian rubles. payment order dated August 21, 2015 N 536.

Thus, by his actions, the defendant approved the completion of the transaction on the terms set out in the Agreement.

Articles 310 and 311 of the Civil Code establish that the fulfillment of an obligation can be ensured by a penalty (fine, penalty), which is recognized as a sum of money determined by law or contract, which the debtor is obliged to pay to the creditor in the event of non-fulfillment or improper fulfillment of the obligation, in particular in the case of delay in fulfillment.

According to clause 5.1 of the Agreement, the parties agreed on a penalty for late payment for goods in the amount of 0.3% for each day of delay in payment of the cost of products shipped and not paid for on time.

Having checked the calculation of the penalty made by the plaintiff, the court comes to the conclusion that it is justified and that the plaintiff has the right to demand the collection of penalties for the period from 08.18.2015 to 11.10.2015 in the amount of 14,424,388 Belarusian rubles.

The court recognizes the calculation of the penalty as justified, since it complies with the terms of the contract and the requirements of the law, and is made within the limits of the amounts that the plaintiff has the right to claim.

When deciding the defendant’s petition to reduce the amount of the penalty to be collected, the economic court proceeds from the following.

In accordance with Part 1 of Article 314 of the Civil Code, if the penalty payable is clearly disproportionate to the consequences of violation of the obligation, the court has the right to reduce the penalty.

When determining the amount of the penalty to be collected from the defendant, the court considers it possible to apply Article 314 of the Civil Code and reduce the amount of the declared penalty presented for collection by the plaintiff to 2,000,000 Belarusian rubles. due to its disproportion to the consequences of violation of the obligation.

As the criteria underlying the conclusion that the penalty is disproportionate, the court takes into account the following circumstances: a fairly high rate of penalties (0.3%), the collection of interest for the use of other people's funds, which to a certain extent compensate for the consequences caused by the violation of a monetary obligation; a relatively short period of failure by the defendant to fulfill the obligation.

In addition, liability in the form of a penalty (including contractual) is provided by the legislator as an incentive for the timely fulfillment of a party’s obligations under the contract, and not as a means of enriching the creditor.

Since the legislator has not established a limit within which the court can reduce the penalty under Article 314 of the Civil Code, the court in each specific case resolves this issue individually, taking into account the evidence presented and the circumstances of the case.

Thus, 2,000,000 Belarusian rubles should be recovered from the defendant. penalties.

By virtue of paragraph 1 of Article 366 of the Civil Code, for the use of other people's funds due to their unlawful retention, evasion of their return, other delay in their payment or unjustified receipt or savings at the expense of another person, interest on the amount of these funds is subject to payment, the amount of which is determined by the refinancing rate of the National Bank of the Republic of Belarus on the day of fulfillment of the monetary obligation or its corresponding part, with the exception of debt collection in judicial procedure when the court satisfies the creditor’s claim based on the refinancing rate of the National Bank of the Republic of Belarus on the day of the decision.

These rules apply unless a different interest rate is established by law or agreement.

In clause 5.3 of the Agreement, the parties established a different amount of interest for the use of other people's funds, namely 1% of late paid funds for each day of delay.

Consequently, if there is a delay in the defendant’s fulfillment of the monetary obligation under the Agreement, the plaintiff has the right to demand interest for the use of other people’s funds for the period from August 18, 2015 to November 10, 2015 in the amount of 48,081,294 Belarusian rubles.

The court recognizes the calculation of interest for the use of other people's funds as justified, since it complies with the terms of the contract and the requirements of the law, and is made within the limits of the amounts to which the plaintiff has the right to claim.

According to paragraph 4 of Article 366 of the Civil Code, if the amount of interest payable for the use of someone else’s money, the amount of which is determined by the agreement on the basis of the second part of paragraph 1 of Article 366 of the Civil Code, is clearly disproportionate to the consequences of violation of the obligation, the court has the right to reduce the amount of this interest at the request of the debtor, but not lower than the amount of interest calculated in accordance with part one of paragraph 1 of Article 366 of the Civil Code.

In deciding on the defendant’s petition to reduce the amount of interest for the use of other people’s funds, the court came to the conclusion that the calculated interest for the use of other people’s funds is clearly disproportionate to the consequences of the violated obligation, since the contractual interest rate clearly exceeds the one-day refinancing rate established by the National Bank of the Republic of Belarus .

The interest rate established in the Agreement for the use of other people's funds does not correspond to the principle of good faith and reasonableness of the participants civil legal relations, and is also aimed at the plaintiff’s ability to collect interest on the use of other people’s money for the purpose of his own enrichment, and not to restore the violated right, which is also confirmed by the stated requirement to collect a penalty from the defendant.

The court also takes into account the amount of the penalty collected, which compensates to a certain extent for the consequences caused by the defendant’s violation of the monetary obligation.

Based on the foregoing, the court considers it possible to reduce the amount of interest to be collected for the use of other people's funds to 4,000,000 Belarusian rubles. due to their obvious disproportion to the consequences of the violated obligation.

Consequently, 4,000,000 Belarusian rubles must be recovered from the defendant. interest for the use of other people's funds.

Thus, the court recovered from the open joint-stock company “O” in favor of the limited liability company “A” 56,095,640 Belarusian rubles. principal debt, 2,000,000 Belarusian rubles. fines, 4,000,000 Belarusian rubles. interest for the use of other people's funds (total 62,095,640 Belarusian rubles), as well as 5,930,066 Belarusian rubles. for reimbursement of expenses for payment of the state duty, the rest of the claim was rejected.

Date of publication: 12/12/2014

The Russian Civil Procedure Code formally provides the parties to a dispute with guarantees of adversarial and equal rights in judicial proceedings, as required by Part 3 of Article 123 of the Russian Constitution. For example, the parties have equal rights and obligations to provide evidence and ask the court to assist in obtaining those that they cannot obtain on their own. But, comparing the proceedings in Russian courts and the European Court of Human Rights, one can suspect that not everything is provided for in the chapter on evidence in Russian law.

Fundamental rules of evidence

The fundamental rule governing evidence in civil process, we recognize the one contained in Part 1 of Article 56 of the Code of Civil Procedure of the Russian Federation (hereinafter referred to as the Code) and establishes the obligation of each party to prove the circumstances to which it refers as the basis for its claims and objections. Taking away from this general rule sets federal law, usually in order to protect the weaker party to the dispute (employee, consumer, etc.). This rule contains the logical chain “evidence - circumstance - claim or objection”. The remaining norms complement and develop this norm.
Thus, paragraph 1 of part 1 of Article 55 of the Code contains a definition of evidence. They mean information about facts obtained in the manner prescribed by law, on the basis of which the court establishes the presence or absence of circumstances justifying the demands and objections of the parties, as well as other circumstances that are important for the correct consideration and resolution of the case. The definition is definitely centered around the court, which we tend to consider as a disadvantage, since this approach already introduces excessive subjectivity of the court when working with evidence. If we try to get away from judicial centrism and try to give a different definition, we will get approximately the following: evidence in the case is information received and presented by the parties in the manner prescribed by law about the presence or absence of circumstances justifying their claims and objections. In any case, evidence is defined as information, the source of which, according to the second paragraph of the cited article, can be explanations of the parties and third parties, testimony of witnesses, written and material evidence, audio and video recordings, expert opinions.
In providing evidence, the parties are limited by the requirements of relevance and admissibility, disclosed respectively in Articles 59 and 60 of the Code. Relevance and admissibility requirements are requirements for the content and source of information: information (otherwise known as information) must be relevant for the consideration and resolution of the case, and also come from the source that is directly specified in the law. If the law does not directly name a means of proving any circumstance, the party is free to provide any evidence of it. There are also requirements for the quality of evidence: by virtue of Part 7 of Article 67 of the Code, the court cannot consider as proven circumstances confirmed only by a copy of a document or other written evidence if the original document is lost and not handed over to the court, and the copies of this document presented to each of the disputing parties are not identical among themselves, and it is impossible to establish the true content of the original document using other evidence.
The fundamental rules governing the actions of the court concern the evaluation of evidence. The Code does not disclose the concept of evaluating evidence and does not directly state the goals of this procedure, but provides an algorithm consisting of a comprehensive, complete, objective and direct study (in the terminology of the Code - research) of evidence and their assessment according to internal conviction for the relevance, admissibility, reliability of each evidence separately, as well as the sufficiency and interconnection of evidence in their totality (parts 1 and 3 of Article 67 of the Code). The court provides the results of the assessment in its decision. The court has no right to base a decision on evidence that was not examined at the hearing, as follows from Part 2 of Article 195 of the Code.
The above logical chain is completed by the court’s conclusion about the validity of the parties’ demands and objections, which is a judgment (in English terminology - judgment) about the existence of a right or obligation. In this regard, we provide an explanation of the Plenum of the Supreme Court of the Russian Federation, what is meant by a reasoned decision, given in paragraph 3 of Resolution No. 23 of December 19, 2003 “On the Judicial Decision”. So, the decision is justified when the facts relevant to the case are confirmed by evidence examined by the court, satisfying the requirements of the law on their relevance and admissibility, or by circumstances that do not require proof (Articles 55, 59 - 61, 67 of the Code of Civil Procedure of the Russian Federation), and also then , when it contains exhaustive conclusions of the court arising from the established facts.

Code Terminology

Let's return to the definition of evidence. From it it can be understood that the circumstances that substantiate the demands and objections of the parties, as well as those that are important for the correct consideration and resolution of the case, are established on the basis of information about the facts. While the above explanation of the Plenum of the Supreme Court of the Russian Federation speaks of confirmation of facts by evidence and circumstances. However, the norms of Part 1 of Article 330 of the Code, listing the grounds for canceling or changing a court decision, should be considered terminologically consistent, because they also logically and legally connect circumstances and evidence. Therefore, terminologically, Article 60 and Part 7 of Article 67 of the Code are also more consistent, since they provide that it is the circumstances that are proven. The circumstances are also established and proven in accordance with Resolution of the Plenum of the Armed Forces of the Russian Federation dated December 11, 2012 N 29 “On the application by courts of the norms of civil procedural legislation governing proceedings in the cassation court” (clause 24).
At the same time, it should be noted that the definition of evidence through information about the facts, on the basis of which circumstances significant for the case are established, makes a very definite connection between facts and circumstances, without, however, identifying these concepts. At the same time, Resolution of the Plenum of the Supreme Court of the Russian Federation dated June 19, 2012 N 13 “On the application by courts of the norms of civil procedural legislation regulating proceedings in the appellate court” generally uses the phrase “actual circumstances of the case”, in which the main definition is “factual”. This turn in wording involuntarily raises questions.
First, if evidence of circumstances is information about facts, then doesn’t this mean that the terms “facts” and “circumstances” are interchangeable? If the answer is positive, the concept of proof also becomes simpler. And a positive answer is indicated by the explanation of the RF Armed Forces, which decision is considered justified.
Secondly, if the evidence is assessed, what does the court do in relation to the circumstances other than establish them? Article 67 of the Code is called “evaluation of evidence”; there is no article “evaluation of circumstances” in the Code, but the appellate court, within the meaning of Article 327 of the Code, has the right to verify and assess the factual circumstances of the case and their legal qualification within the limits of the arguments of the appeal. Consequently, the assessment of circumstances (facts) as a procedure still exists. But not in itself, but as a basis for conclusions about the existence of the rights and obligations of the parties - this is precisely what is indicated by such a basis for canceling or changing the decision of the court of first instance as the discrepancy between the court’s conclusions and the circumstances (Clause 3, Part 1, Article 330 of the Code) . From the content of paragraphs 1 - 3 of part 1 of the cited article, we can conclude that the assessment of established circumstances is subject to the same rules as the assessment of evidence, for example, it also occurs according to the internal conviction of the courts of both instances.

The discrepancy is obvious

Before describing the practice of applying paragraph 3 of part 1 of Article 330 of the Code, let us draw attention to the absence in it of a definition of “established” before the word “circumstances”. Given the duty of the court to assist the parties in obtaining and presenting evidence in a system with a valid principle of achieving objective truth, it can be assumed that it is the established circumstances that are meant. Established by the court of first or appellate instance, since the latter has the right to accept evidence, in its opinion, unreasonably withdrawn by a lower instance, and the court has no right to draw any conclusions without establishing the circumstances.
By an appeal ruling dated May 7, 2014 in case No. 33-1119/2014, the Kurgan Regional Court overturned the decision of the lower court on the grounds that the court’s conclusions did not correspond to the established circumstances. The district court refused to satisfy the plaintiff’s claims arising from the loan agreement on the grounds that he missed the deadline limitation period without valid reasons, despite the fact that the case file contained discharge summaries that confirmed the valid reasons for such absence - being in hospital. In addition, the court of first instance did not properly examine the receipt, in which the deadline for repayment of the loan amount was not stipulated, which meant that the statute of limitations was calculated from the moment the demand for repayment was presented. As a result, the regional court, having actually considered the case again, partially satisfied the claim.
The Krasnoyarsk Regional Court also faced an improper assessment of the established circumstances. The appeal ruling dated April 21, 2014 in case No. 33-3720/2014, A-33 overturned the decision of the Sverdlovsk District Court of Krasnoyarsk dated February 3, 2014, which denied satisfaction claims on consumer protection banking services. In overturning the decision, the panel pointed to an obvious violation of the principle of freedom of contract when concluding a loan agreement: an insurance contract with a specific insurer was imposed on the client, and the real insurance premium was not communicated. The plaintiff drew the attention of the court to these violations, but the arguments were not taken into account, despite the fact that all the agreements of the bank and those imposed by the insurer, as well as the plaintiff’s application for insurance, were at the disposal of the court of first instance.
The unlawful rejection of the evidence presented by the plaintiff regarding the conclusion of an insurance contract with the defendant and payment of the insurance premium, as unacceptable, in the opinion of the panel of the Moscow City Court, became the reason that the court of first instance made the incorrect conclusion that the insurance contract was not concluded. The appeal ruling dated January 24, 2014 in case No. 33-892 of this court overturned the decision on the dispute arising from the insurance relationship. The panel did not agree with the conclusions of the Simonovsky District Court and the defendant’s arguments about the defendant’s disapproval of the transaction to conclude an insurance agreement with the plaintiff, since the defendant transferred the insurance policy to the agent agency agreement, and the plaintiff paid the insurance premium, which means the insurance contract came into force. The defendant's arguments that they did not receive the insurance premium under this insurance contract were not recognized as a basis for refusing to pay insurance compensation to the plaintiff, since the plaintiff fulfilled its obligations under the insurance contract in full. The defendant's arguments that the loss of a strict reporting form (insurance policy) and the signing of an insurance policy by an unauthorized person are grounds for refusal to pay insurance compensation are also not recognized as grounds for refusal to satisfy claims, since the current legislation does not contain such grounds for the release of the insurer from payment of insurance compensation. Finally, the insurance policy was not invalidated.
On April 17, 2014, the Supreme Court of the Republic of Tatarstan issued an appeal ruling in case No. 33-5339/14, which amended in the contested part the decision of the Vysokogorsky District Court of the Republic of Tatarstan dated February 12, 2014, which fully satisfied the claims for compensation for material damage, but the amount collected has been reduced legal expenses. The panel pointed out that there were no grounds for proportionate satisfaction of claims for reimbursement of legal costs, citing Article 103 of the Code.
The unjustified recognition of the appraiser's report on the amount of damage as evidence became the reason for the cancellation of the decision of the Alapaevsk City Court dated August 21, 2013 on the plaintiff's appeal. The Sverdlovsk Regional Court, by a ruling dated December 24, 2013 in case No. 33-14457/2013, satisfied the plaintiff’s demands in the stated amount, since the called specialist, in the opinion of the panel, convincingly substantiated his calculations.
The St. Petersburg City Court, by Ruling No. 33-1121/2013 dated January 31, 2013, overturned the decision of the district court and dismissed the plaintiff’s claim. At the meeting, it was established that the defendant does not live at the address given in the lawsuit and is not registered, and therefore is not obliged to transfer rent and utility bills for the services provided in favor of the plaintiff. The court of first instance did not study the apartment purchase and sale agreement in detail, and the plaintiff did not present any evidence of residence in the disputed premises or the fact of family relations between the person living there and the defendant.
So, the most common mechanisms of violation provided for in clause 3, part 1, art. 330 of the Code, consist of: 1) unreasonable withdrawal of evidence, leading to refusal to recognize the fact as confirmed; 2) in incomplete examination of the evidence, which also entails non-recognition of the circumstance as confirmed; 3) in an incorrect assessment of circumstances called abstract concepts (respect, integrity, proportionality, etc.). In the first two cases, the court deprives itself of significant information. Regarding the last case, we emphasize that the appellate court, if there are relevant statements and convincing arguments from the appellant, has the right to give a different assessment of the established factual circumstances of the case.

Lack of proof of significant circumstances for the case

The violations listed in paragraphs 1 - 3 of part 1 of Article 330 of the Code, which are grounds for canceling or changing a decision, are in certain logical relationships. For example, the violation specified in paragraph 1 involves both the failure to establish significant circumstances and the lack of evidence, while the violation specified in paragraph 2 involves the correct determination of significant circumstances, the court’s stated establishment of them, but the absence of evidence in the case. In the case of clause 3, the court collects evidence of significant circumstances, but does not correctly establish and/or evaluate one or the other. The result of violations is the same - incorrect conclusions.
Before we move on to a description of the practice, let us pay attention to the explanation given by the Plenum of the Supreme Court of the Russian Federation regarding the consideration of appeals in terms of requesting evidence of facts that have not been proven by the party and the court of first instance. The above-mentioned Resolution of the Plenum of the Supreme Court of the Russian Federation imperatively requires the appellate court to invite persons participating in the case to present additional (new) evidence if the circumstances relevant to the case have not been proven in the court of first instance (clause 2 of part 1 of Article 330 of the Code of Civil Procedure of the Russian Federation), in including due to incorrect distribution of the burden of proof (Part 2 of Article 56 of the Code of Civil Procedure of the Russian Federation). In this imperative one can see both an invasion of the principles of dispositiveness and adversarialism, and another confirmation that the appellate court in such cases considers the case as a court of first instance, as if it did not exist. During a “new” consideration of a dispute, the appellate court also calls witnesses, experts, specialists, and appoints forensic examinations. And only if the party is unable to provide evidence to the appellate court, the latter will make an appropriate decision on the available evidence.
For greater illustrative purposes, let us also take decisions on insurance disputes and cases of compensation for damage.
The Ryazan Regional Court, by an appeal ruling of April 2, 2014 No. 33-651, overturned the decision of the lower court in the disputed part and refused to satisfy the plaintiff’s demands for recovery of lost profits from the tortfeasor on the grounds that it was not proven. The court of first instance proceeded from the fact that the plaintiff presented evidence confirming the causal relationship between the traffic accident and the forced downtime of the plaintiff’s car, as a result of which the plaintiff was deprived of the opportunity to rent out the car and receive income. The panel of the regional court did not agree with the district court, pointing out that the lease agreement itself and the receipts for the tenant's receipt of funds from the plaintiff undoubtedly do not confirm the fact that the plaintiff, through the fault of the defendant, suffered losses in the form of lost profits in the declared amount. The plaintiff did not provide written evidence confirming the actual execution of the lease agreement and the transfer of the right to use the car to the lessee (power of attorney to drive the car, insurance policy). compulsory insurance civil liability), while this circumstance is legally significant. Thus, the panel of judges came to the conclusion that the plaintiff did not present to the court indisputable evidence of the fact that before the accident, the lease agreement between its parties was actually executed, the plaintiff received income from its execution, and the possibility of the plaintiff making a profit really existed.
To consider the case on the merits, the judicial panel of the Moscow City Court itself requested from the insurer the person guilty of Driver accident information about his civil liability insurance. Having received information about the availability of MTPL and DSAGO policies and having not received the defendant’s documented consent to voluntarily compensate her for damages, by an appeal ruling dated December 24, 2013 in case No. 11-35091, the board rejected the claim of the insurer who brought the claim in the manner of subrogation.
Based on the lack of proof of the reasons for the occurrence financial liability employee before the employer, the Irkutsk Regional Court, by an appeal ruling dated May 23, 2014 in case No. 33-4148/2014, canceled the decision to recover material damage from the employee. The board found that the employer did not comply with the inventory procedure, the specific reasons for the shortage of goods were not established, the amount of damage, the guilt of the defendants in causing the damage, the illegality of their behavior, and the causal connection between their behavior and the damage occurred were not proven.
The Supreme Court of the Republic of Bashkortostan, in case No. 33-14420/2013, also decided to demand evidence from the defendant, a DSAGO policy, since the amount of damage caused to the plaintiff exceeded the limit established by law. Having assessed the existence of the DSAGO agreement as a significant circumstance for the case, the panel found it unproven and, by a Ruling dated November 26, 2013, recovered the amount of compensation from the defendant and also satisfied the derivative claims.
The reversal of an unjust decision based on a violation of the rules for the provision and evaluation of evidence, entailing its recognition as inadmissible, is illustrated by the Appeal Determination of Krasnoyarsk regional court dated March 12, 2014 in case No. 33-2398/14. The court of first instance was provided with unreadable and contradictory documents confirming that the convicted person had committed a disciplinary offense; the institution did not provide reasons for the contradictions in the information contained. The above defects led to the recognition of the chief’s decision penal colony the imposition of a penalty is not justified, and the decision of the first instance is subject to cancellation.
The defendant's explanations in the case of a claim for compensation for damage by way of subrogation were considered inadmissible evidence. Information about the existence of an MTPL agreement was obtained from the explanations of the defendant, who did not provide evidence of this statement. The court did not invite the defendant to submit the relevant evidence (policy) and did not take measures to obtain it, and therefore the circumstances established by the court that are significant for the case have not been proven, which is the basis for canceling the court decision. Based on the letter received from the defendant’s insurer about the expiration of the defendant’s MTPL agreement, the panel of the St. Petersburg City Court, by Appeal Ruling No. 33-7765/2013 dated June 26, 2013, satisfied the insurance company’s claims.
The described practice once again shows how violation of the rules for collecting and evaluating evidence entails erroneous conclusions about the proof of circumstances significant for the case.

Prospects for cassation appeals

From the next day after issuance appellate ruling the decision comes into force. And if in the court of appeal the parties can still present evidence that, in their opinion, was unreasonably withdrawn by the court, and the panel must request the missing evidence, then completely different rules apply in the court of cassation. Resolution of the Plenum of the Armed Forces of the Russian Federation dated December 11, 2012 N 29 “On the application by courts of the norms of civil procedural legislation governing proceedings in the cassation court” explains that when considering cassation appeals In presentations with the case, the cassation court does not have the right to establish or consider as proven circumstances that were not established or were rejected by the court of first instance or appellate instance (clause 24). Thus, the judge-reporter studies the case with a closed list of established circumstances, which means his obligation to transfer the complaint for consideration on the merits if, based on the results of the study, he establishes that the establishment of all circumstances significant to the case is incomplete. We find it logical to assume that the cassation court is obliged to consider as proven the circumstances established by the courts of first instance or appellate instance.
On the other hand, the same paragraph of the Resolution contains another explanation: “At the same time, if the court of cassation establishes that the courts of the first and (or) appellate instances committed violations of procedural law when examining and evaluating evidence, which led to a significant judicial error and irresistible nature (for example, court order in violation of the requirements of Article 60 of the Code of Civil Procedure of the Russian Federation is based on inadmissible evidence), the court takes these circumstances into account when making a cassation ruling (ruling). "The establishment of circumstances significant for the case on the basis of inadmissible evidence, as we indicated earlier, is qualified as their lack of evidence, entailing the cancellation of the decision. Accordingly, it is not excluded from the competence of the reporting judge to check the compliance of the procedure for examining and evaluating evidence with the requirements of the Code if the cassator claims violations of legal requirements.
If the grounds listed in paragraphs 1, 2, part 1 of Article 330 of the Code can be confidently considered relevant for cassation proceedings, then the discrepancy between the conclusions and the circumstances of the case is debatable, given its essence. If this discrepancy was caused by an unjustified withdrawal of evidence (the challenge must be reflected in the decision and motivated) or incomplete examination of individual evidence or its totality, then there are grounds for canceling the decision. At the same time, if the court did not violate the requirements of Articles 59, 60, 67 of the Code, and the cassator insists only on a different qualification of the circumstances, the court rejects the complaint.
However, the success of a cassation appeal depends not only on its quality, but also on whether the judges - rapporteurs of the regional or Supreme Court of the Russian Federation recognize the arguments of the cassator as significant.

Terminology and practice of the European Court

Vocabulary used

To conclude the topic, one cannot leave without comparing the procedures of proceedings in Russian courts and in the European Court of Human Rights.
The Rules of the European Court, which entered into force in January 2014, contain Rule 47, paragraph 3.1 (a) of which provides for the provision of copies of relevant documents, including judicial and other documents related to the subject of the complaint. The complaint itself must contain, in accessible language, the applicant's submissions describing the essence of the violation. The same term refers to all other explanations of the parties on the merits. Thus, European Court also requires provision of relevant evidence. Rule 74.1 of the Rules lists what must be in the order (decision) of the Court. In particular, in paragraph 1 "f" the word "facts of the case" is used, not "circumstances". Indeed, the events in the decisions and decisions of the Court are described under the heading “Facts”, but the Court considers (regard) and evaluates (evaluate) the circumstances (see, for example, the decision of the Court of 06.02.2003 on the admissibility of complaint No. 71630/01 “Wendenburg and others (Wendenburg and others) v. Germany"). In this decision, the Court calls facts, the legal realities of the respondent state, while circumstances are what needs to be established and assessed to resolve the case based on the provisions of the Convention, Protocols and case law. In the Resolution of June 26, 1986 on complaints No. N 8543/79; 8674/79; 8675/79; 8685/79 Van Marle and others v. The Netherlands The Court relates the facts and circumstances as a whole and a part, making “The circumstances of the case” the first subheading of the “Facts”, “Current legislation” the second. The recent Resolution of the Grand Chamber of the European Court dated June 12, 2014 on complaint No. 56030/07 “Fernandez Martinez v. Spain” was drawn up in a similar manner: the facts include the circumstances of the case and legislation, including canon law.
The European Court has repeatedly indicated that it does not replace national courts in assessing the circumstances of a case. Nevertheless, complaints to the European Court continue to be received in the hope of a different interpretation of the circumstances. And there are reasons for hope. For example, let’s take the Court’s Resolution of July 21, 2011 on complaint No. 28274/08 “Heinisch v. Germany,” in which the applicant complained about the decisions of labor courts that recognized her dismissal as legal for reporting her employer to the prosecutor’s office.

The story of one case

In the Heinisch case, the appellate court overturned the labor court's decision and declared the dismissal lawful. The applicant appealed to the Federal Constitutional Court of Germany with a demand to declare unconstitutional the norm of the German Civil Code, on the basis of which she was dismissed, in the sense that it allowed dismissal for reporting the employer's offenses. The Federal Constitutional Court of Germany refused to accept the complaint. Previously, the same body adopted a resolution in which it expressed its position, which received the force of law, regarding statements against the employer: the employee must be careful in presenting information, or he may in good faith be mistaken about the veracity of the information reported. And the German Federal Labor Court issued its ruling on “whistleblowing,” which balanced the employee’s right to make statements against the employer with his duty to be loyal to him. According to his position, the employee must act in good faith, that is, not try only to harm and, if possible, first resort to the internal procedures existing at the employer. If the latter do not produce results or obviously do not produce results, or the violations constitute a serious crime, the employee is free from the duty of loyalty. The appellate court found that the applicant had stated the accusations of fraud against the employer inaccurately, failed to bring witnesses, and tried not to defend herself, but to put pressure on the employer by attracting public opinion. The German government raised a number of other objections to the applicant's complaint. The European Court considered the case from the standpoint of its case law. By the time of the hearing, the court had already developed a methodology for considering such disputes, that is, in the language of the Code, significant circumstances all were identified. Some of them were not established or considered by national courts at all; the Court did not agree with the assessment of others.
Firstly, the Court took into account the social significance of the circumstances reported to the prosecutor's office (the case concerned the workload on the staff of a nursing home, which turned out to be overload). Secondly, the internal procedures in the applicant’s case did not work and there was no expectation of improvement in conditions. Thirdly, the Court did not agree that the applicant presented the facts freely, without checking the correspondence with reality; on the contrary, her arguments were confirmed during an organized inspection, and therefore were not without a factual basis. Fourthly, the applicant acted in good faith and did not try to put pressure on the employer, as opponents pointed out, since she first turned to a specialist for help in drawing up a complaint, and only after disciplinary measures were applied to her - to the public. Fifthly, public interests outweighed the importance of the employer's reputation, so the applicant enjoyed greater freedom in presenting her allegations. Finally, the penalty applied was excessively harsh and could have a “freezing effect” not only on the employees of this establishment, but also on all others. The dismissal had an intimidating effect, which could have prevented workers from informing authorities about their employers’ violations. As a result, the Court found a violation of Article 10 of the Convention.

To conclude the topic, one cannot help but point out the symbiosis of the practice of the ECHR and the practice of Russian courts, laid down by part 4 of article 15 of the Russian Constitution. International treaties are an integral part Russian legislation, accordingly, the practice of their application is subject to mandatory registration by Russian courts. Resolution of the Plenum of the Armed Forces of the Russian Federation dated June 27, 2013 N 21 “On the application by courts general jurisdiction European Convention for the Protection of Human Rights and Fundamental Freedoms of 04.11.1950 and its Protocols" requires that courts take into account the case law of the ECtHR, and suggests that violation of this requirement may lead to the reversal of a court decision. It turns out that Russian courts themselves are obliged to evaluate each time the matter through the prism of not only Russian law, but also international. Continuing this logic in relation to the topic, we conclude that Russian courts must determine significant circumstances based on both national law and international law, confirm them with admissible and relevant evidence, and the conclusions must correspond to the established circumstances. Errors in determining the circumstances that are significant from the standpoint of the Convention or the Protocols as interpreted by the Court, and the discrepancy between the conclusions and the circumstances, lead to violations of the provisions of the Convention, which it finds. We showed this connection using the example of the case described above. At the same time, the Court is not obliged to disagree with the conclusions and assessment of the circumstances of the Russian courts, due to which a complaint to the ECHR, aimed only at a reassessment of the circumstances, has little chance. In this regard, we note that the Court sometimes agrees with the arguments of the respondent state and refuses to reassess the circumstances established by it and the national courts, citing the fact that it is the national courts that are in a better position when assessing the factual circumstances.

Judge Mitkova JI.B.

CASSATION DETERMINATION

Judicial panel for civil cases Astrakhan Regional Court composed of: presiding Mukhambetalieva N.Kh.

judges of the regional court Karpova I.Yu., Egorova I.V.

under secretary Potapova N.V.

heard in open court on the report of judge Karpova I.Yu. case on the cassation appeal of representative Silyaev R.F. - Shnychkina D.P. on the decision of the Kirovsky District Court of Astrakhan dated June 3, 2011 on the claim of the Open Joint Stock Company TransCreditBank represented by the Astrakhan branch against R.F. Silyaev. on the collection of interest for using a loan,

installed:

Open joint stock company TransCreditBank, represented by the Astrakhan branch, filed a lawsuit against R.F. Silyaev. about collecting interest for using a loan, motivating their demands by the fact that. *** concluded between them and the defendant loan agreement in the amount of *** rubles at *** per annum for a period of up to ***. In connection with the failure to fulfill obligations under the loan agreement, the Bank filed a lawsuit for debt collection, by the decision of the Kirovsky District Court of Astrakhan dated October 23, 2009 against R.F. Silyaev. the debt on the loan, the cost of paying the state duty were collected, the mortgaged property was foreclosed on - *** at the address: ***, the initial sale price of the apartment was established in the amount of *** rubles. IN deadline the apartment was not sold, it was transferred to the Bank by a bailiff at a price of *** rubles. The debt was partially repaid at the expense of the defendant’s property, the balance of the debt amounted to *** rubles. The bank asked to recover from the defendant the debt to pay interest on the overdue principal debt for the period from *** to *** in the amount of *** rubles, the cost of paying the state duty in the amount of *** rubles.

The representative of TransCreditBank OJSC, represented by the Astrakhan branch, supported the claim at the court hearing.

Defendant Silyaev R.F., his representative Shnychkin D.P. the claim was not recognized.

By the decision of the Kirovsky District Court of Astrakhan dated June 3, 2011, the claims were satisfied.

In response to the court's decision, Silyaev's representative R.F. - Shnychkin D.P. a cassation appeal was brought, which raises the question of canceling the decision. It is stated that the court did not take into account the repayment of the principal amount and interest on the loan by transferring the pledged property to the plaintiff, did not consider the issue of the value of the apartment at the time of filing the claim, and did not evaluate this property. It is believed that the court unreasonably took into account the Bank’s calculation, which is based on the principal amount of the loan, without taking into account the repaid amount.

The representative of TransCreditBank OJSC, represented by the Astrakhan branch, having been duly notified, did not appear at the meeting of the judicial panel, did not submit motions to postpone the consideration of the complaint, with the specified
circumstances in accordance with Art. 354 of the Code of Civil Procedure of the Russian Federation, the judicial panel considers it possible to consider the case in his absence.

Having listened to R.F. Silyaev, his representative D.P. Shnychkin, who supported the arguments of the complaint, checked the case materials, and discussed the arguments of the complaint, the judicial panel comes to the conclusion that the court decision was canceled due to the lack of proof of the circumstances relevant to the case established by the court of first instance.

The court of first instance came to the conclusion that the defendant had violated his obligations to repay the loan, and collected from the defendant in favor of the bank an amount of *** rubles - interest on the overdue principal debt, taking into account the calculation of the debt presented by the plaintiff.

The court's conclusion that the defendant owes the plaintiff a debt in the specified amount is not supported by evidence.

As follows from the materials of the case *** between OJSC TransCreditBank represented by the Astrakhan branch and Silyaev R.F. a loan agreement No. *** was concluded for the amount of *** rubles at *** per annum for a period of up to *** /l.d.62-66/. The borrower did not properly fulfill his obligations under this loan agreement.

By the decision of the Kirovsky District Court of Astrakhan dated October 23, 2009, R.F. Silyaev in favor of TransCreditBank OJSC, a loan debt in the amount of *** rubles was recovered, of which - the debt on the principal debt *** rubles, interest on the overdue principal debt *** rubles, overdue interest *** rubles, penalties ** * , expenses for paying the state duty *** rubles, foreclosure was applied to the pledged property - ***, located at the address: ***, the initial sale price of the pledged property was established in the amount of *** rubles / pp. 6-8/ . By the ruling of the judicial panel for civil cases of the Astrakhan Regional Court dated November 25, 2009, the decision was left unchanged.

By order of the bailiff from ***, the unsold apartment was transferred to TransCreditBank OJSC to pay off the debt, its cost was *** rubles. The ownership right of TransCreditBank OJSC to the specified apartment was registered ***, for which a certificate was issued state registration rights. The balance of the debt according to the court decision amounted to *** rubles. The plaintiff asked to recover interest on the specified amount, which amounted to *** rubles, from the defendant in their favor. At the same time, the plaintiff presented several calculations of interest calculated for different periods.

In the decision, the court did not indicate which calculation was taken into account, for what period and why, did not check the defendant’s arguments about the incorrectness of the calculations presented by the plaintiff, and did not provide in the decision the reasons why it did not agree with the arguments presented by the party in support of the objections to the claim. The court did not take into account the partial repayment of the debt by the defendant as a result of the transfer of the apartment to the plaintiff, valued at *** rubles, therefore, the reduction in the amount of the principal debt, did not take into account the provisions of clause 4.2 of the agreement dated ***, according to which interest is charged by the creditor on the balance of the debt on principal debt.

These circumstances are important for the correct resolution of the dispute.

In accordance with the provisions of Art. 67 of the Code of Civil Procedure of the Russian Federation, the court evaluates evidence according to its internal conviction, based on a comprehensive, complete, objective and direct examination of the evidence available in the case.

No evidence has predetermined value for the court.

The court evaluates the relevance, admissibility, reliability of each evidence separately, as well as the sufficiency and interconnection of the evidence in its entirety.

The court is obliged to reflect the results of the assessment of evidence in a decision, which provides the reasons why some evidence was accepted as a means of substantiating the court’s conclusions, other evidence was rejected by the court, as well as the reasons why some evidence was given preference over others.

These legal requirements were not met by the court.

Under such circumstances, the court's decision cannot be considered correct and is subject to cancellation. Violations committed by the court of first instance cannot be corrected by the court of cassation, and therefore the case is subject to remand for a new trial, during which the above should be taken into account, the arguments given by the parties to substantiate their claims and objections should be checked, the evidence presented should be assessed, make a court decision in accordance with the law.

Guided by Art. 361 Code of Civil Procedure of the Russian Federation, Judicial Collegium for Civil Cases of the Astrakhan Regional Court,

determined:

the decision of the Kirovsky District Court of Astrakhan dated June 3, 2011 is canceled and the case is sent for a new trial to the same court.

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Translation of "the court took into account" in English

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See examples translated by court took into account
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See examples translated by Court considered the
(2 examples with alignment)

See examples translated by court took note
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Other translations

Suggestions

The State party emphasizes that the court took into account the author's state of health and concluded that there was no reason to believe that he would not receive adequate medical care while in detention.

The court took into account the fact that achieving economic integration with other states is a constitutional strategy that must be pursued on the basis of the principles of equity, reciprocity and national convenience.

The Court took into consideration that economic integration with other States is a constitutional strategy that should be achieved on the basis of fairness, reciprocity and national convenience.

Court took into consideration that economic integration with other States is a constitutional strategy that should be achieved on the basis of fairness, reciprocity and national convenience.">

By assigning punishment, the court took into account public danger and grave consequences of the crime committed by the author.

When imposing the punishment, the court took into account public danger and the severe consequences of the crime committed by the author.

Court took into account public danger and the severe consequences of the crime committed by the author.">

In addition, Supreme the court took into account the excessive length of the trial and used this factor as a mitigating circumstance.

Besides, the Supreme Court took into account the length of the proceedings and used it as a mitigating factor in this regard.

Court took into account the length of the proceedings and used it as a mitigating factor in this regard.">

When exercising their powers the court took into account balancing considerations of convenience for the parties.

Court considered the balance of convenience to the parties.">

And finally the court took into account the serious nature of the defects, taking into account a specialist report showing that bricks passing through this equipment had a failure rate of between 75 and 84 percent depending on the speed used.

Lastly, the Court considered the seriousness of the defects in the light of the expert report that had shown that bricks passing through the machine exhibited a breakage level of between 75 per cent and 84 per cent, depending on the speed applied.

Court considered the seriousness of the defects in the light of the expert report that had shown that bricks passing through the machine exhibited a breakage level of between 75 per cent and 84 per cent, depending on the speed applied.">

Drawing this conclusion, the court took into account the existence of the relevant international trade custom and its significance under Article 9, paragraph 2, of the Convention.

In reaching this conclusion, the court took into account the existence of an international trade usage to this effect and its relevance pursuant to article 9, paragraph 2 of the Convention.

Court took into account the existence of an international trade usage to this effect and its relevance pursuant to article 9, paragraph 2 of the Convention.">

Considering this case, the European the court took into account a convincing argument made by the author to refute the government's thesis that his story is unreliable3.

In this case, the European Court took into account the author"s persuasive argument rebutting the Government"s claim that his account lacked credibility.

Court took into account the author"s persuasive argument rebutting the Government"s claim that his account lacked credibility.">

In addition to these indications the court took into account the author's confessions made during the preliminary investigation, which support both the testimony of witnesses and other evidence.

In addition to those testimonies, the court took into account the author"s confessions given during the preliminary investigation, which corroborate both the witnesses" depositions and the rest of the evidence.

Court took into account the author"s confessions given during the preliminary investigation, which corroborate both the witnesses" depositions and the rest of the evidence.">

2.7 The author further submits that in determining the penalty the court took into account his previous criminal record, for which he had already suffered punishment at the time of sentencing (December 6, 2002).

2.7 The author further claims that in deciding the level of punishment, the court took into account his prior conviction, which he had already served before the sentence was handed down (6 December 2002).

Court took into account his prior conviction, which he had already served before the sentence was handed down (6 December 2002).">

Supreme the court took into account the fact that the author was previously subjected to administrative punishment according to part 1 of article 23.34 of the Code of administrative offenses, and held that the lower courts correctly determined his actions under Section 3 of the same article.

The Supreme Court took into account that the author had previously been the subject of an administrative penalty under article 23.34, part 1, of the Code on Administrative Offences and determined that the lower courts had correctly defined his actions under part 3 of the same article.

Court took into account that the author had previously been the subject of an administrative penalty under article 23.34, part 1, of the Code on Administrative Offences and determined that the lower courts had correctly defined his actions under part 3 of the same article.">

The court took into account and supported Georgia's main argument and stated that the Russian Federation is a party to the dispute between Russia and Georgia, which arose as a result of the 2008 Russian-Georgian war.

The Court took into consideration and upheld the main argument of Georgia and declared that the Russian Federation was a party to the dispute between Russia and Georgia which had arisen as a result of the 2008 Russo-Georgian war.

Court took into consideration and upheld the main argument of Georgia and declared that the Russian Federation was a party to the dispute between Russia and Georgia which had arisen as a result of the 2008 Russo-Georgian war.">

In determining the amount due to the wife, The court took into account the advantageous circumstance for the wife is that she receives her share of her husband’s pension benefit in the form of a lump sum payment.

When it determined the sum to which the wife was entitled, the Court took into consideration the advantage involved in the fact that her share of the husband's pension rights took the form of a lump-sum payment.

Court took into consideration the advantage involved in the fact that her share of the husband's pension rights took the form of a lump-sum payment.">

The court took into account that modifications to ATMs can be carried out at the same time as annual maintenance and that the associated costs should be calculated not by individual ATM, but by type of ATM.

The Court took into account that retrofitting of the ATMs could be carried out at the same time as the annual maintenance services and that the cost incurred must be calculated per ATM type, and not per ATM.

Court took into account that retrofitting of the ATMs could be carried out at the same time as the annual maintenance services and that the cost incurred must be calculated per ATM type, and not per ATM.">

The court took into account interests of the girl in this case and considered that she also has the right to justice, which means that this case should be considered in court.

Judge Murzagalieva A.Z. case No. 33-8629/2015

APPEAL DECISION

Judicial panel for civil cases of the Sverdlovsk Regional Court, consisting of: presiding Romanov B.V., judges Zvyagintseva L.V. and Voloshkova I.A. when keeping the minutes by assistant judge Sorokin A.S.

considered in open court on June 18, 2015 a civil case on the claim of (/ /)1, (/ /)2 to (/ /)3, (/ /)4 for recovery of damage caused as a result of flooding of the apartment, compensation for moral damage, legal expenses

on the appeals of defendants (/ /) and (/ /)7 against the decision of the Verkh-Isetsky District Court... dated 02/25/2015.

Having heard the report of judge L.M. Zvyagintseva, the explanations of the defendant (/ /)7, who also represents the interests of the defendant (/ /)3 on the basis of a notarized power of attorney from (/ /) ...0, which supported the arguments of the appeals, the plaintiffs’ objections (/ /)1 and (/ /)2, as well as a third party (/ /)11, who asked to leave the court decision unchanged, the judicial panel

installed:

by decision of the Verkh-Isetsky District Court of Yekaterinburg dated February 25, 2015, claim (/ /)1 and (/ /)2 to (/ /)7, (/ /)3, (/ /)4 for recovery of damage caused as a result flooding of the apartment, compensation for moral damage, costs of paying for the services of the appraiser were partially satisfied.

Collected jointly and severally with (/ /)7 and (/ /)3 in favor of the plaintiffs for damages (/ /) costs of paying for the services of an appraiser - (/ /)

From (/ /)7 and (/ /)3 in favor of (/ /)2 the costs of state duty in size (/ /). from each defendant.

The claim against (/ /)7 and (/ /)3 for moral damages was rejected.

The claim against (/ /)4 was rejected in full.

Disagreeing with the said court decision, defendants (/ /)7 and (/ /)3 filed appeals.

In the appeal, the defendant (/ /)3 asks to cancel the appealed decision and make a new decision in the case to reject the claim, citing an incorrect determination of the circumstances relevant to the case and the discrepancy between the court’s conclusions and the evidence presented.

Believes that the court satisfied the claim without finding out the reasons for the leak, considering the defendants to be at fault for causing damage (damage to the plaintiffs’ apartment) on the basis of the totality of evidence, namely: on the basis of the act presented by the plaintiffs from (/ /) and the testimony of a witness (/ /)8 o cohabitation of the defendants in the apartment from where the flooding of the apartment occurred; a report assessing the cost of damage caused by the defendants based on the results of an inspection by a specialist appraiser from (/ /) which was accepted by the court due to the defendants’ failure to provide evidence of a different cause of flooding and evidence of a different amount of damage.

Challenging the court's conclusions set out in the decision, the defendant (/ /)3 refers to violations of the rules of procedural law committed by the court, expressed in the fact that the court did not explain to him his procedural rights, including the presentation of evidence, the filing of motions, and did not propose in order objections to the claim, order a re-examination to determine the amount of damage, and conclude a settlement agreement.

The descriptive part of the court decision does not contain any indication of the defendant’s objections, attached to the case materials, which he presented at the court hearing, did not give proper legal assessment evidence relied on by the defendant in his objections. Therefore, he believes that the court showed a biased attitude towards the defendants and examined this case incompletely and biasedly. The court decision does not provide the reasons why some evidence was accepted and others were rejected, as required by Art. . To assess the reliability of the testimony of the witness (/ /)8 about the cohabitation of the defendants, the court did not compare them with other evidence, ignoring the evidence presented by the defendant about the impossibility of cohabitation of the spouses, including medical certificates and an agreement social hiring, from which it follows that (/ /)3 needs outside care, such a caregiver is (/ /)9, and the wife with whom (/ /)3 married after receiving a warrant and moving into... ., naturally, comes more often to his daughter and other relatives, brings food, prepares food, cleans the apartment, but constantly lives in his own... However, the court, in fact, limited itself to only the testimony of a witness, which it considered reliable confirmation of the fact that the spouses lived together in apartment and being (/ /)7 in the apartment at the time of the leak.

The court did not take into account the explanations of the defendant (/ /)10 about the unintentional nature of his inaction, since as a result of the strong pressure of water, the tap on the water filter was torn off, and the defendant, due to the trembling of his limbs caused by the disease, could not cope with the tap and close it in time, I slipped and couldn’t get up until my wife arrived. However, this fact was not the subject forensic research, the court applied joint and several liability to the defendants, although, in the opinion of (/ /)3, the court’s reference to Art. is untenable, since only the common debt (obligations) of the spouses, their guilty actions can be a consequence of the joint infliction of harm to other persons, for which the spouses are jointly and severally liable to the victim.

Since it took a short time from the time the leak occurred until it was eliminated, the leak could not have caused a flood to the extent indicated by the plaintiffs, and the amount of damage was equal to the cost of a complete cosmetic renovation of the apartment. The plaintiffs presented to the court the Bay Act, drawn up on the third day after the accident, accepted by the court as evidence of damage to the plaintiffs’ property, without taking into account that the act was drawn up in the absence of the defendant and without his signature, although the plaintiffs had the opportunity, when drawing up the act, to invite the defendant, who was constantly at home for health reasons.

The actions of the drafters of the act, who were not questioned in court, in the opinion of the author of the complaint, indicate a violation of the procedure, and therefore, by virtue of Art. do not meet the admissibility criterion, which the court did not take into account, although the defendants challenged this act. However, the court did not bring up for discussion between the parties the issue of ordering a re-examination in accordance with Art. , citing in the decision that the defendants did not provide evidence of a different amount of damage, although the court itself should have ordered such an examination, taking into account the need for special knowledge to determine the amount of damage.

Relying when making a decision on the report of a specialist appraiser from (/ /) as evidence of the actual amount of necessary expenses, the court did not evaluate and treated the results of this report with extreme confidence, accepting it as unconditional and reliable evidence of damage caused by the defendants, although the expert’s conclusion was not may have predetermined force, must be assessed along with other evidence. The appraiser's findings are probable because one appraiser costs painting the walls (/ /) This is not an expert approach, so no judge should accept such reports as evidence. In addition, according to the author of the complaint, the report of the appraiser presented to the court does not meet the requirements regulatory documents, does not contain conclusions about the basis on which actual damage as a result of soaking was identified; the qualifications of the specialist appraiser who assessed the damage are not indicated, whom the author of the complaint considers to be an amateur who does not understand the technology of construction and, in particular, finishing works, since when drawing up the report he relied mainly on information received from the customer, without taking measurements, who carried out calculation of the size of premises based on the cadastral plan of the premises, which is not enough to calculate the areas of walls, window and door openings. As a result of the failure of the appraiser to carry out measuring work, the areas of the ceiling and walls turned out to be overestimated, the calculation of materials necessary for repairs was overestimated, the same prices were taken for different types works (dismantling and installation), the calculation of the cost of repairs includes painting the walls without replacing wallpaper, and another clause includes the operation of clearing the walls of old paint and sanding them, although why you need to sand paper wallpaper and then paint it is unclear.

Restoration repairs after flooding are aimed at bringing the premises to their previous state and for the new finishing materials must be used that are similar in consumer properties to those that were previously used for finishing (the same type, quality, price range, etc.), the Court ignored the fact that the report was drawn up without indicating the old finishing of the premises, based on the inspection report dated October 15, 2014, in which the features and level of finishing of the premises before the flood were not determined, since the indication that the floor was laminate and the walls were for painting is not enough to bring the appearance of an apartment damaged by the flood to the condition that preceded the damage. The court did not pay attention to the inclusion in the calculation of some of the most expensive and high-quality finishing materials, which does not exclude the unjust enrichment of the plaintiffs. Therefore, he considers it unproven and contrary to the requirements of Art. and the amount of damage, since the calculation of the cost of damage presented in the appraiser’s report does not reflect the actual cost refurbishment the plaintiffs' residential premises damaged as a result of the flooding of the apartment.

When making a decision, the court did not apply the law to be applied, namely: the norms of paragraph 3 of Art. to reduce the amount of compensation for damage, taking into account the fact that the spill was caused by negligence, as well as the financial situation (/ /)10, to which the defendant referred in his objections, attaching to them a certificate from the pension authority about the presence of disability and a small amount of pension, from which half of the amount is spent on medicines, rehabilitation equipment, calling doctors to your home, paying for care, and rent.

The appeal filed a petition for the admission of additional evidence: a clarifying certificate from the UPFR dated March 12, 2015, comments on the calculation of the cost of restoration repairs, which confirm the arguments of the complaint, since the defendant could not present them to the court of first instance due to the inability to attend the court hearing for health reasons.

The appeal of the defendant (/ /)7 indicated as grounds for canceling the court decision the violation by the court of the rules of substantive and procedural law, the lack of proof of circumstances relevant to the case, the discrepancy between the court’s conclusions and the actual circumstances of the case, which was expressed, in the opinion of this defendant, in the following: in the introductory part, complete information about the parties involved in the case is not indicated (the defendant (/ /)7 and the third party (/ /)11 are not indicated); in the descriptive part of the decision, contrary to the evidence presented, it is indicated that the co-defendant (/ /)4 is the owner (/ /) of a share in the ownership of... in...; the content of the objections presented by the defendant (/ /)3 in his response with the evidence attached to them is not given, to which the court did not give any analysis, which indicates a poor-quality and formal approach of the court to the materials available in the case.

When presenting the claims in the descriptive part of the decision, the court indicated that the basis for filing a claim was the defendants’ failure to comply with the agreement on timely payment by them to repay the amount of damage, according to which payment of the amount of damage was provided in full (/ /) Having accepted the statement of claim (/ /) that is, before the expiration of the specified debt repayment period, the court did not attach importance to this fact. At the same time, the plaintiffs did not attach to the statement of claim either the agreement referred to in the lawsuit, or evidence confirming the defendants’ refusal to repay the debt.

In the appeal, defendant (/ /)7, like defendant (/ /)3, refers to the fact that (/ /) is inadmissible evidence, since it was compiled without prior notification of the defendants about the inspection of the apartment and familiarization with the results of the assessment, which did not give the defendants the opportunity to challenge the report and order another independent examination before the start of the trial; and the act from (/ /) is based only on the assumption of guilt (/ /)7 in causing the damage, and her objections about the absence of guilt, challenging the act and the report on the amount of damage were ignored by the court. At the same time, the court did not give the defendant a copy of the statement of claim, nor copies of other documents attached to the statement of claim, which the defendant only read in court, prepared her objections to them, and presented them to the court. At the last court hearing (/ /), the plaintiffs presented additional evidence, but the court did not provide an opportunity to familiarize themselves with it and did not explain the right to ask the court to postpone the court hearing, which deprived her of the opportunity to provide evidence of her residence in another apartment and a certificate from the pension authority that , that care for (/ /)3 is carried out by (/ /)9

The court decision indicated that the plaintiffs’ daughter (/ /)11, who actually lives in the plaintiffs’ apartment, should be involved in the case as a third party; it was her testimony that the court took into account, although she is an interested party.

All the evidence referred to by the court to confirm the guilt of the defendant (/ /)7 is probabilistic, and the receipts presented by the plaintiffs as evidence of admission of guilt (/ /)7, issued in the name of (/ /)12, whom the court did not involve in participation in the case, were drawn up under his dictation, under the threat of “dragged through the courts and sent around the world as a beggar,” and one receipt indicated damage caused due to the fault of (/ /)3, in the other – due to the fault of (/ /)7, which was the basis for the court to find both defendant spouses guilty of causing damage, despite the fact that admission of guilt, especially under the influence of threats and delusions, cannot be evidence, since guilt must be proven by the court.

The court found it established that defendant (/ /)4 does not live in the apartment, but that defendants (/ /)3 and (/ /)7 actually live, own and use this apartment; the court made this conclusion solely on the basis of the testimony of a witness (/ / )8, questioned at the request of the defendant (/ /)7 However, the court treated the witness’s testimony with extreme confidence, not taking into account the objection (/ /)7 that she permanently resides at a different address - in... in... , of which he is the owner, is registered there and makes payments for the provided utilities, and therefore it is impossible for her to live in... together with (/ /)3, who is a disabled person of the first group, suffering from a severe form of a chronic disease, and therefore it is impossible to live together with him in the same apartment. It was for this reason that he was provided with a separate apartment under a social tenancy agreement, about which relevant evidence was presented to the court. Due to poor movement of (/ /)3 around the apartment, both (/ /)7 and daughter (/ /)4 have a key to his apartment, as well as (/ /)9, who is registered for the care of (/ /)3

The court deliberately selected from the witness's testimony only those where she states that the neighbors live together, while ignoring the testimony of the same witness that (/ /)7 came to... after the gulf, but the court found the defendants joint and several persons who jointly caused harm by applying Art. , although by virtue of Art. had to determine whose actions led to the flooding of the plaintiffs’ apartment and whether the person was guilty of committing them.

According to the defendant (/ /)7, her guilt in causing the damage has not been proven; she cannot be jointly and severally liable with her husband, since this contradicts the provisions of Art. , and the provisions of Art. should not be applied to this situation at all, since the spouses did not commit any joint actions.

In the appeal, the defendant (/ /)7 also filed a motion to accept as additional evidence to confirm the fact of her residence and registration in another apartment, and not together with (/ /)3, following documents: certificate (/ /)", certificate of registration (/ /)3, notification of the Unified Center for payment of utility bills for (/ /) notification of recalculation of the subsidy amount

By the ruling of the judge of the Sverdlovsk Regional Court from (/ /) the consideration of the case on the appeals of the defendants Koltyapin G.S. and (/ /)7 scheduled for 06/18/2015, of which all participants in the process were duly notified.

At the hearing of the appellate court, the participants in the process did not object to the consideration of the case in the absence of the defendant (/ /)3, who issued a power of attorney to his wife (/ /)7 to represent his interests, and therefore the judicial panel, guided by Article , decided to consider the case at this turnout.

At the hearing of the appellate court, the defendant (/ /)7 supported the arguments of the appeals and the petitions stated in them for the admission of additional evidence.

Plaintiffs (/ /)1 and (/ /)13 did not object to the admission of additional evidence; they filed a motion to add their written objections to the appeal to the case materials, to which the defendant (/ /)7 did not object

The panel of judges, guided by Art. - , attached written objections of the plaintiffs, and also taking into account the opinion of the parties that the defendants referred to these circumstances in the court of first instance, the new evidence presented actually confirms the previously presented arguments, granted the stated requests for the acceptance of documents attached to the complaints: certificates of the Frunze Homeowners Association , 43"; apartment card; rent receipts; notifications about recalculation of the subsidy amount.

The defendant (/ /)7 at the court hearing of the appellate court supported the arguments of the appeals, asked them to be satisfied, the decision of the court of first instance to be canceled, considering that her guilt in causing the damage had not been proven and not established by the court, since the receipts that she gave were not are proof of her guilt. The soaking was caused by her husband, not by her. She was not in the apartment. This has not been proven by the plaintiffs. At the same time, she did not dispute her husband’s guilt, since he did not renounce his guilt, but asked to take into account his financial level, as well as the fact that they had already paid part of the money for the damage. They cannot afford to continue paying (/ /) monthly.

When asked by the court whether (/ /)7 is married to (/ /)3 and since when, whether she lives with him in..., where her neighbors constantly see her, and why she claims that she is just coming to to his apartment for care, answered that she had been married to him since (/ /) year, but did not live in this apartment, she had her own apartment on..., the marriage was conditionally registered to make it easier for her to decide questions for him.

When asked to clarify what she meant by a conditional marriage, whether the marriage was fictitious, she replied that she did not think so, they had a common adult daughter ((/ /)3).

When asked how to understand her actions to pay (/ /) in compensation for damages, she answered that she voluntarily paid them (/ /) and compensated the plaintiffs for (/ /). two months in a row ((/ /) for the guilty actions of her husband, despite the fact that she herself did not live in the disputed apartment.

Plaintiffs (/ /)1 and (/ /)13 supported their written objections to the appeal, considering the decision of the trial court to be legal and reasonable, correct on the merits, since defendant (/ /)7 is married to (/ /)3, she takes care of her sick husband, lives with him, and visits the apartment every day. Although she and (/ /)3 do not have any joint contractual obligations to the plaintiffs, they believe that both spouses should compensate for the damage.

The plaintiffs themselves were not in the apartment at the time of its flooding; the plaintiffs received a call from neighbors on the first floor who thought that the plaintiffs were drowning them, but it turned out that the leak occurred from the defendants’ apartment to the first floor. They learned from neighbors that (/ /)7 was also in the apartment at the time of the flooding, neighbors saw both spouses in the apartment at that moment, the defendant was there when the flooding occurred, because neighbors came and saw her there.

The witness correctly said that the defendant was in..., and there was no one in the plaintiffs’ apartment during the flooding, the plaintiffs received a call that they were flooded. The witness was questioned by the court, and the witness's testimony was correctly reflected in the court's decision. In addition to the witness whose testimony is disputed by the defendants, there are other witnesses in other apartments who saw both spouses, their explanations are available in the case file. It is believed that the arguments of the complaints that (/ /)7 has another apartment on Frunze do not refute the conclusions of the court. When the plaintiffs arrive home, they see that the defendant (/ /)7 is always in this apartment.

The third party (/ /)11 supported the plaintiffs’ objections, considering the court’s decision legal and justified, and the arguments of the appeals as untenable, since (/ /)11 learned about the fact of flooding of the apartment from neighbors who said that they were flooded from the plaintiffs’ apartment. Several apartments were damaged. Defendant (/ /)7 has been constantly living in the apartment since (/ /) a year, and was there at the time of the flooding, which was confirmed not only by witness Poplavskaya, but also by other neighbors. The defendant provided a certificate stating that she had been living since ... (/ /) year, but the defendants’ daughter did not confirm this; they gave different testimony. The certificate was prepared on the basis of a registration card, which confirms only the fact of registration in the apartment and payment for it, and not the fact of permanent residence itself. The plaintiffs did not want to bring the case to court, they offered the defendants an installment plan, they paid the cost of the assessment themselves, they suggested that the defendants reduce the amount of damage from (/ /). The defendants agreed to an installment plan based on (/ /). monthly. At first, the defendant paid, the money was sometimes accepted by her husband (/ /)11 At the last moment, when (/ /)7 saw that they were making suspended ceilings in the apartment, she refused to continue paying for the damage, deciding that the plaintiffs would not prove anything. In fact, (/ /)7 paid only (/ /) rubles, then said that for (/ /) rubles. It will be difficult for her to pay. In court, the plaintiffs proposed to go to settlement agreement, even (//) offered the defendants an installment plan, but they did not want to resolve the issue amicably. Believes that the court made the right decision.

Having studied the case materials, having discussed the arguments of the appeals (/ /)3 and (/ /)7, supported by the defendant (/ /)7 at the hearing of the appellate court, the plaintiffs’ objections (/ /)1, (/ /)13, supported by the third person (/ /)11, who considered the court’s decision to be legal and justified, essentially correct, the judicial panel comes to the following conclusion.

The court established and confirmed by the case materials that plaintiffs (/ /)1 and (/ /)13 are the owners of residential premises located at the address: ....

As follows from the content of the statement of claim and the explanations of the plaintiffs and a third party in court hearings, (/ /) the entire apartment of the plaintiffs was flooded (with the exception of the farthest dressing room) from the one above..., which is reflected in the act dated May 10, 2014, when drawing up which was attended by (/ /)7, who signed for her husband, which can be confirmed by an employee of the management company.

The fact that (/ /)7 was present during the drawing up of the act and signed for (/ /)3 in the act was not disputed by her in court hearings, no petition was filed for the appointment of a handwriting examination to establish the signature in the act, the procedure for drawing up the act itself and its the contents, including the reasons for the flooding of the plaintiffs’ apartment indicated in it, were not questioned, nor was the volume of flooding; the defendants did not ask for a summons to court and interrogation of the persons who signed the act; the circumstances under which the flooding occurred were established at the court hearing, in connection with which the arguments of the complaint (/ /)3 about an insignificant leak in comparison with how it is reflected in the act and the report on assessing the amount of damage, the invalidity of the act on the basis that the defendants were absent when drawing up the act, (/ /)3 are not invited, although he is always at home, the signature on the act was forged (/ /)3, and a third party signed for the plaintiffs (/ /)11, the content of the act does not meet the requirements regulatory requirements, is probabilistic in nature, does not meet the requirements for admissibility and relevance - contradict the case materials and the factual circumstances established by the court, are based on a subjective interpretation of Art. .

According to the plaintiffs’ explanations, they themselves live in..., their daughter (/ /)11 and her husband live in the apartment, who, like the plaintiffs, were not in the apartment at the time of the flooding; their neighbors, as well as the plaintiffs themselves, called them by phone from below, who thought that the flooding came from the plaintiffs' apartment.

According to the local estimate from (/ /), the estimated cost of damage was (/ /) According to the plaintiffs’ explanations, the calculation did not include repairs to the hallway, since her son-in-law (/ /)7, who came with her to the plaintiffs’ apartment to inspect the consequences of the leak, repaired damage in the hallway. After the flooding (/ /), the parties agreed on the amount of compensation for damage - (/ /) with payment in installments until the end (/ /) taking into account the financial situation of the defendants. At the same time, the parties agreed that they would not engage an expert to draw up a damage assessment report in order to avoid the cost of paying for his services. By agreement with (/ /)7 on voluntary compensation for damage in installments, she drew up a receipt, in accordance with which she undertook to pay an amount in the amount of (/ /). by paying (/ /), the rest of the amount - in equal parts (/ /) monthly, up to (/ /) a year. On the day of writing the receipt (/ /)7 she brought with her young man, whom she introduced as an expert. He explained that he was her son-in-law, took photographs of everything, and she herself was present during the inspection (/ /)7 The plaintiffs began repairs. However, the defendant (/ /)7, having paid (/ /), stated that she would not be able to pay any more damages for (/ /) and the defendants did not contribute any more money to compensate for the damage caused. When the plaintiffs contacted the defendant, they received a response refusing further compensation for damage.

The arguments of the defendant's appeal (/ /)7 that she was forced to write a receipt contradict the case materials and the behavior of (/ /)7 herself, who not only wrote the receipt, but also paid money three times to compensate for the damage, and then refused to continue compensation for damage, believing, according to the explanations of a third party, that due to the lapse of time the plaintiffs will not be able to present evidence.

Claiming that she was forced to write a receipt, (/ /)7 did not present any evidence to the court to confirm this fact, and did not contact law enforcement agencies regarding any threats from the plaintiffs or third parties.

According to the report (/ /) the cost of damage resulting from the flood was (/ /) This report was compiled after (/ /)7 refused to reimburse the remaining amount.

Minus the voluntarily paid amount in the amount of (/ /), the plaintiffs asked to recover from (/ /)7 and (/ /)3 in compensation for damage caused by the flooding of the apartment, (/ /) compensation for moral damage - (/ /)., cost services of an appraiser – (/ /) expenses for payment of state duty – (/ /)

(/ /)11, the daughter of the plaintiffs, brought to participate in the case as a third party as actually residing in.... (/ /) on... in..., supported the stated requirements in full.

By a court ruling from (/ /) (/ /)4, who is the owner... in..., was brought to participate in the case as a co-defendant, on the basis of an agreement for the transfer of an apartment into the ownership of citizens from (/ /) ((/ /) ).

The defendant (/ /)4 did not admit the claim in a written objection, citing the fact that she is an improper defendant, since... she does not live in and has never moved into it, her father (/ /)3 registered this apartment in her property as compensation for the fact that he had another family and after the birth of (/ /)4 he only voluntarily acknowledged paternity and provided minor assistance, never paying child support. After a divorce from his wife and the death of his son, his health condition worsened and he, as a disabled person of the first group, was allocated living quarters, which currently belongs to (/ /)4 The marriage between the parents was concluded in (/ /) years, but mother (/ /)3 did not move, but continued to live in the apartment at.... In (/ /) (/ /)3 she married (/ /)16 and moved to live with him in..., maintaining registration records in apartment.... In September (/ /) their son Ilya was born. Since... was in her property before the marriage was registered, it is her sole property.

Not being a member of the family of her mother (/ /)7 and her father (/ /)3, not living together with them, (/ /)3 cannot be held responsible for the damage caused to the plaintiffs’ apartment, since it is not her fault as the owner of the apartment, in where her parents live, the house was commissioned in (/ /) years, the standard service life of all equipment in the apartment, including plumbing, expires only in (/ /), it does not need repair or replacement, any system malfunctions there was no water supply, applications to the operating organization, including emergency service from... was not received, which can be confirmed by the application log of Eurodom LLC, where there are no records of the departure of mechanics. Only due to poor-quality roofing in (//) year, the roof leaked; streaks and yellow spots formed in the leakage areas.

According to (/ /)4, the report from (/ /) and the appraiser’s report from (/ /) do not confirm either the source of the flooding or the amount of damage in the plaintiffs’ apartment, and therefore the amount of damage. Therefore, he considers the plaintiffs’ demands to be unfounded and not subject to satisfaction ((/ /)).

Attached to the objections (/ /)4 are photocopies of her passport and the passport of her husband (/ /)16, a certificate of state registration of ownership of... in... from (/ /), a marriage certificate with (/ /) 16 (/ /) child’s birth certificate – (/ /), (/ /) year of birth, certificate of (/ /)3 being on parental leave up to (/ /) years and receiving benefits, issued at the place of work (/ /)3 in (/ /) (...), a photocopy of the certificate of paternity, a certificate of registration in the apartment at the address: ..., according to which the owner of the apartment is indicated (/ /)14, (/ /), his wife (/ /)15, (/ /) year of birth, their son - (/ /)16, (/ /) year of birth, son (/ /)17, (/ /)).

No other evidence confirming the actual residence of (/ /)4 in her husband’s apartment in..., where besides him his parents and brother are registered, was not presented to the court.

The case file contains a photocopy of a written agreement concluded by (/ /)7 and (/ /)3, according to which (/ /)3 lives in..., which belongs to her and her mother (/ /)7 on the right of common shared ownership(by (/ /) share) and pays for (/ /) person the maintenance of housing and overhaul ((/ /)).

Defendant (/ /)3 in a written objection to the claim indicated that he did not agree with the claim, since he learned about the fact of flooding... about the stated claim only at the court hearing on January 20, 2015, having read the statement of claim, he considers it unfounded and not subject to satisfaction , referring to the fact that..., in which he lives, was allocated to him by order of the head of the administration... from (/ /) as a person suffering from a serious chronic disease, in which it is impossible for citizens to live together in the same apartment, he was a social tenancy agreement has been concluded, which states that he is moving in alone. Before moving into... he lived with his ex-wife(/ /)18 in..., in..., where he was registered. Due to the expiration of the privatization of housing, they decided to register ownership of the apartment in the name of their daughter (/ /)4, who was issued a certificate of registration of ownership, since he registered her at this address with (/ /) she had never been to did not live in this apartment; after the privatization agreement was drawn up, she was again registered at her place of actual residence. (/ /)3 is not a member of her family; her daughter has been married since (/ /) years old and has a young son.

(/ /) (/ /)3 married (/ /)7, who lives with her daughter.... The wife is neither the owner nor the tenant..., she did not move in with her, because the disease (/ / )19 excludes the possibility of citizens living together in one apartment, thus, she did not acquire the right to use this residential premises, based on the fact that the spouses are free to choose their place of residence. Taking into account these circumstances, the spouse remained to reside at her registered address - in....

(/ /)3 is a disabled person of the first group (wheelchair user), is registered with a neurologist and urologist, cannot move independently, (/ /) he underwent an operation that complicated independent care. His wife, who is also disabled and has chronic illnesses, comes to him several times a week, bringing food, medicine and clothes.

On the evening of May 10, 2014, being at home alone, he tried to pour water for himself, but due to the strong pressure and trembling of his hands, he had difficulty closing the tap, some water spilled past the sink, he slipped and fell, he could not get up on his own until his wife arrived, she then helped him sit in the stroller.

Challenging the act from (/ /), the defendant (/ /)3 refers to the fact that no one invited him when drawing up this act, he was not present during the inspection of the plaintiffs’ apartment, although his name is indicated in it and there is a signature, the signature of the plaintiff (/ / )13 is also different from her signature on the statement of claim. Consequently, the act was drawn up without the defendants or witnesses and was not signed by the plaintiffs; the place where it was drawn up, the time of discovery of the leak, the level of flooding of the premises, how and where the water came from, and what measures were taken were not indicated. Therefore, he considers this act invalid; in addition, he believes that the plaintiffs have not provided evidence of the reason for the flooding of the apartment. The report only indicates traces of wetness on the ceiling and partially on the kitchen wall near the window and on the wall at the entrance to the room; nothing is said about the origin of the moisture and the origin of the soaking of two rows of two rows of tiles and swelling of the laminate; the report does not indicate the detection of leakage from apartments on top, although they could have appeared due to any other reasons not related to the actions of the defendant, because in (/ /) year there was flooding of all apartments of the house from (/ /) floor to the first due to poor-quality roofing, which is confirmed by the act dated (/ /) in connection with which the plaintiff’s reference to the reason specified in the act – the failure of the tap on the water filter in... – is considered untenable. According to the defendant, the act only confirms the fact of flooding, but cannot establish the cause of the flooding; it indicates only the probable cause, and specific circumstances are established by specialists, including by examining the source of the flooding. However, no one came to his apartment to inspect it and examine the location of possible leaks.

The plaintiffs live in..., the apartment is rented to the Salnikov spouses, who are not registered in it, living without a contract, previously the apartment belonged to other owners, so the separation of the laminate seams could be the result of the actions of the previous owner, poor-quality coating (the house was rented in (/ /) with defects and in poor quality). The plaintiffs did not present an act of acceptance and transfer of residential premises when concluding a purchase and sale agreement, nor did they provide confirmation of ownership of the things in the apartment that could have belonged to both the former owner of the apartment and the tenants. The flooding of the apartment could have been the result of careless actions of the plaintiffs themselves or temporary residents, especially since the plaintiffs point to the fact of long-term flooding, while the defendant claims that on the day of the flood he allowed a small accumulation of water to form in the kitchen, which was only a coincidence and a reason for the plaintiffs demanding compensation for damage in the amount of a sum of money equal to five pensions of the defendant, for which the plaintiffs want to repair the entire apartment.

He believes that the claim should be rejected due to its groundlessness, since the plaintiffs did not provide evidence of a documentary inspection of the defendant’s residential premises, did not present evidence objectively indicating that the flooding in the apartment was due to the defendant’s fault, did not invite him to draw up a flood report, having forged his signature, and were not notified of the inspection of the apartment by the appraiser, which deprived him of the opportunity to have information about the damage and the opportunity to challenge these documents (/ /)

The defendant (/ /)7 did not admit the claim, citing the fact that the cause of the flooding had not been established; (/ /) she came home and saw her husband lying in the water. She was not present when the act was signed; the signature on the act was not hers or her husband’s. She did not go into the plaintiffs' apartment, she was only in the kitchen some time after the flooding while writing a receipt, which she was forced to write, so she wrote it. The defendant is only formally a member of the family (/ /)3, with whom the marriage is formalized. She has her own apartment in..., in which she lives, but she often stays with her husband, having nothing to do with his apartment, and does not admit her guilt in causing damage to the plaintiffs’ apartment. The expert's report did not indicate the damaged area, the conclusion was made on the basis of a photo, there was only an external inspection, there was no technical inspection. There was water, but there was no damage in the defendants' apartment, but he cannot provide evidence of this. The defendant has no other calculation.

When resolving this dispute, the court, based on a study and assessment of the written evidence presented, as well as explanations of the parties, a third party, and the testimony of a witness questioned at the request of the defendant (/ /)7, came to the conclusion that the claim should be satisfied, considering the circumstances of damage to the apartment established plaintiffs through the fault of defendants (/ /)3 and his wife (/ /)7, living in..., having rejected the claim against the daughter of defendants (/ /)4, who does not live in this apartment with her parents, it follows from the evidence presented , that she was registered immediately after her birth in ..., with her mother (/ /)7 (from (/ /) to (/ /)), in the same apartment she was again registered from (/ /) with her son - (/ /)20, (/ /) year of birth, being the owner of (/ /) a share of this apartment on the basis of an agreement for the transfer of the apartment into the ownership of citizens (privatization agreement) dated (/ /) ((/ /)). Being also the owner... in..., (/ /)4 does not actually live with his parents in the specified apartment. Her parents, defendants (/ /)7 and (/ /)3, live in it, which is also confirmed by the testimony of a witness (/ /)8, questioned by the court at the request of the defendant (/ /)7

The arguments of the defendants' appeals are that cohabitation of (/ /)7 with (/ /)3 is impossible due to his illness, (/ /)7 only comes to him to provide assistance, and permanently lives in another apartment due to... . (/ /), contradict the case materials, from which it follows that the one-room apartment in... is actually inhabited by the family of their adult daughter, who works in..., is married to (/ /)16, they have a child. , which is confirmed by a certificate of registration (/ /)4 with a son (/ /) in the specified apartment, presented by an agreement concluded between mother and daughter on the distribution of expenses for housing and major repairs, others presented (/ /)3 with a written objection documents, as well as explanations of (/ /)3 himself in his written objections.

In resolving the dispute, the court was correctly guided by the rules of substantive and procedural law applicable to the disputed relations of the parties, based on the fact that, in accordance with Art. Civil Code Russian Federation, harm caused to the person or property of a citizen is subject to compensation in full by the person who caused the harm; the person who caused the harm is released from compensation for harm if he proves that the harm was not caused through his fault.

On this basis, the court correctly distributed the burden of proof of the circumstances to be proven.

Having analyzed the norms of housing law in relation to the disputable relations of the parties, the court came to the conclusion that the proper defendants for the claims stated by the plaintiffs are not the owner of the apartment - (/ /)4 (daughter of the defendants), who bears the burden of maintaining this apartment, but the direct causes harm, living in..., the flooding from this apartment was due to their fault, since there was no evidence of their guilt, contrary to the rules of Art. and art. , was not presented to the court by the defendants. On the contrary, as follows from the case materials, the defendant (/ /)7, recognizing the existence of damage as a result of the flooding of the plaintiffs’ apartment and the guilt of her husband in causing it, agreed to pay a smaller amount of damage, which the plaintiffs agreed to, taking into account the financial situation of the defendant (/ /)3; wrote a receipt, actually began to pay the amount of damage, but subsequently refused to pay the remaining amount.

The court, having examined and assessed the evidence presented by the parties according to the rules of Art. , including taking into account the explanations of the defendants themselves, found it established that the leak occurred due to the failure of the valve on the AKVOFOR water filter. The defendants have not proven any other reason, nor has the court established it.

The nature and volume of damages caused, which the court correctly determined on the basis of Art. and established judicial practice, confirmed by the evidence presented by the plaintiffs, including in comparison with acts on the flooding of premises from (/ /) the nature and extent of damage caused in (/ /) years, which were not refuted by the defendants in the prescribed manner, evidence of a different amount of damage not submitted, no request for an examination was filed, despite the written response (/ /) regarding their claims expressed in the review (/ /)3 and objections (/ /)7 ((/ /)).

Judicial practice on:

Judicial practice on the application of Art. 15, 393 Civil Code of the Russian Federation

Judicial practice on the application of Art. 1064 Civil Code of the Russian Federation

Judicial practice on the application of Art. 15 Civil Code of the Russian Federation