The case is based on the following circumstances. What does the law say about them? fact of fulfillment of contractual obligations by the plaintiff

A. KISELEV

According to paragraph 1 of part 1 of Article 330 of the Code of Civil Procedure of the Russian Federation, the basis for canceling or changing a court decision in the court of appeal is the incorrect establishment of circumstances relevant to the case, and according to paragraph 4 of part 1 of Article 330 of the Code of Civil Procedure of the Russian Federation, such a basis is violation of norms procedural law. At the same time, in accordance with Part 3 of Article 330 of the Code of Civil Procedure of the Russian Federation, a violation of the rules of procedural law is grounds for cancellation if it led to the adoption of a decision that was essentially incorrect. Otherwise, such a violation is recognized as formal and does not entail cancellation or change of the decision. The above violations may become grounds for cancellation of the decision by the court of cassation if they are considered significant. One of these violations includes a violation by the court of the obligation to motivate the preference of some evidence over others, provided for in Part 4 of Article 67 of the Code of Civil Procedure of the Russian Federation. The practice of applying both articles deserves attention.

INCOMPLETE OR INCORRECT

When preparing for the hearing, the judge must establish what circumstances are to be clarified and what rules of substantive law govern the disputed legal relationship. This obligation implies another one - to establish the entire scope of legal relations in the case. This may mean that not one normative act, but several, which are in certain relationships with each other, is subject to application in the case. It is the applicable rules of substantive law that tell the court what circumstances must be established. With such an algorithm of actions, it seems unlikely that the court would incorrectly establish significant circumstances, although such examples exist. Thus, the panel of the Moscow City Court, issuing a Ruling dated April 18, 2012 in case No. 33-10465, indicated as one of the reasons for satisfying the complaint that the violation of the substantive law on the calculation of the average monthly earnings of the breadwinner led to an incorrect determination of the amount to be recovered from the defendant, which was obviously a significant circumstance. But, more likely, this may be the case chain reaction: the court does not see the full complexity of the case and does not take into account the existence of any relationship, which necessarily entails the failure to establish the applicable norm of the substantive law, and further, the failure to establish all significant circumstances, the proof of which would provide grounds for its application. Therefore, incomplete identification of all significant circumstances often accompanies the non-application or incorrect application of the rules of substantive law to be applied. Another pattern, in our opinion, can be seen in the example of Ruling of the Voronezh Regional Court dated February 14, 2012 No. 33-780. In this case, incomplete clarification of significant circumstances was the reason that the court did not evaluate the evidence already available in the case file and did not motivate its withdrawal. An obvious consequence of incomplete identification of significant circumstances is incomplete collection of evidence in the case or its unreasonable withdrawal.
But, as stated above, the literal basis is precisely the incorrect establishment of significant circumstances. What does the court do?
The violations listed in paragraphs. 1 - 3 of part 1 of Article 330 of the Code of Civil Procedure of the Russian Federation, according to the second paragraph of paragraph 39 of the Resolution of the Plenum of the Supreme Court of the Russian Federation of June 19, 2012 N 13 “On the application by courts of the norms of civil procedural legislation regulating proceedings in the court of appeal”, are not classified as formal violations of the norms of procedural law . But this does not provide grounds for a literal interpretation of clause 1, part 1, art. 330 of the Code of Civil Procedure of the Russian Federation, which we will show with practical examples. In practice, infidelity is also understood as incompleteness, although these are different terms. Thus, clause 1, part 1, article 270 of the Arbitration Procedure Code of the Russian Federation formulates the grounds for cancellation or amendment court decision precisely as an incomplete clarification of essential circumstances. And Article 1 of the Code of Civil Procedure of the Russian Federation allows the use of not only the analogy of law, but also the analogy of law, therefore it would be fair to apply this basis in the appellate instance. Appellate courts analogy in in this case do not apply, but use its broad interpretation.
The cassation court is not bound by the wording of the article on the appellate instance, therefore it has the opportunity to simply call the incompleteness of clarification of all significant circumstances as a basis for canceling a decision, if it finds it significant in a particular case. Article 387 of the Code of Civil Procedure of the Russian Federation allows this. As an example, let us cite Resolution of the Presidium of the Tomsk Regional Court dated June 26, 2013 No. 44g-59/2013. Criticizing the court decisions, the Presidium pointed to an incomplete study of the contractor’s guilt in causing harm to the consumer. In particular, the Presidium did not find any signs in the court decisions that they had identified and examined such circumstances relevant to the case as the cause of the malfunction of the plaintiff’s car (in particular, whether the car’s brake pedal failed immediately after the car was accepted after repair work was performed) , immediately at the time of the accident), the presence of a cause-and-effect relationship between the accident and the actions of the defendant in providing the service.
However, speaking about the incompleteness of establishing significant circumstances, it should be noted that even when higher courts check the decision of the court of first instance, significance often turns out to be not something objective, but a matter of discretion. In such cases, they often refer to the sufficiency of the circumstances studied to make a decision. With each instance, the forecast for the outcome of a case in which this approach is applied worsens.
Article 328 of the Code of Civil Procedure of the Russian Federation names the powers of the appellate court. The court may leave the decision unchanged, and the complaint without satisfaction, and cancel the decision in whole or in part and make a new decision. In this regard, we note that the appellate court cannot send the case for a new trial and can accept new evidence only if the party has justified the impossibility of presenting it to the trial court for reasons beyond its control, and the court recognizes these reasons as valid. Paragraph 29 of the mentioned Resolution provides for in cases of incorrect determination by the court of first instance of the circumstances relevant to the case, the duty of the appellate court to bring up for discussion the issue of the presentation of additional (new) evidence by persons participating in the case and, if necessary, at their request, to assist them in collecting and requesting such evidence. Additional (new) evidence is examined in the manner established by Chapter 6 of the Code of Civil Procedure of the Russian Federation “Evidence and Proof” and Articles 175 - 189 of the Code of Civil Procedure of the Russian Federation.
The Presidium of a regional or equivalent court when identifying incompleteness in establishing significant circumstances during the consideration cassation appeal, guided by clause 2, part 1, art. 390 of the Code of Civil Procedure of the Russian Federation, cancels the court decision and sends the case for re-examination, pointing out the shortcomings, since the cassation court cannot correct the procedural violations.

GUARANTEED TRANSPARENCY OF DECISIONS

According to Part 1 of Article 67 of the Code of Civil Procedure of the Russian Federation, the court evaluates evidence based on internal conviction. Evaluating evidence is an intellectual process, therefore hidden from the parties. Only by asking questions from the court can the parties and other participants sometimes guess the course of the chairman’s reasoning. In order to ensure transparency of the assessment procedure, Part 4 of Article 67 of the Code of Civil Procedure of the Russian Federation requires the judge to reflect in the decision the results of the assessment of evidence, the reasons for preferring some evidence over others. Judicial practice shows that higher courts still check not only the fact of motivation, but also evaluate the motives themselves if a party claims improper motivation. It also shows that violation of the requirement provided for in Part 4 of Art. 67 of the Code of Civil Procedure of the Russian Federation, may be the reason for making an illegal decision and, therefore, a valid basis for canceling the decision. Obviously, the above takes into account Constitutional Court RF, indicating in numerous definitions that the obligation to reflect the assessment of evidence, as well as the motives for challenging some and accepting others, serves as protection against arbitrary assessment and a guarantee of transparency of the entire proceeding. From a formal point of view, it is impossible to disagree with this position. At the same time, a violation of this obligation is often not an independent basis for canceling or changing a decision, but accompanies another violation. For example, by the Resolution of the Presidium of the Chelyabinsk Regional Court dated May 16, 2012 in case No. 44-g-51/2012, judicial acts lower authorities on the grounds that, when considering a consumer dispute, the appellate court did not motivate the challenge of the plaintiff’s examination of the essence of the defects of the product in favor of the defendant’s examination, which confirmed its suitability. In addition, the Presidium pointed to the lack of research into the cause-and-effect relationship between damage to the consumer and other characteristics of the product as an incomplete clarification of all significant circumstances. Also indicative is the Appeal Ruling of the Voronezh Regional Court of May 31, 2012 No. 33-3247. The panel of judges also found a violation by the court of first instance of the obligation to motivate the withdrawal of evidence on the part of the plaintiff, as well as the failure to prove significant circumstances. This definition an example of how one violation can lead to another. The unreasonable withdrawal of written evidence and witness testimony led to the fact that the court did not properly prove an essential circumstance - the property of the testator, heir.
Appellate courts are also required to indicate for what reason they reject certain evidence that was not rejected or, on the contrary, accepted by lower courts. To do this, they review the evidence, often overestimating it. Yes, Bryansky regional court By an appeal ruling dated October 22, 2013 in case No. 33-3280/13, he refused to satisfy the claim for the protection of honor, dignity, business reputation and recovery of moral damages. The basis for dismissal of the claim was the lack of proof of the fact of dissemination of information discrediting the reputation. The panel of judges was critical of the expert’s conclusion, forming its own opinion about the examined document: according to the judges, the expert’s conclusion did not answer the main question, the answer to which is necessary in cases of this kind, and also contained significant errors in the interpretation of the object of research by the expert himself. And in the above-mentioned Ruling of the Moscow City Court, the panel, in support of the rejection of documents on the amount of earnings of the deceased breadwinner, also noted that the court made a decision on the basis of unacceptable and unreliable evidence.
The decision is generally proof of the work done by the court. If evidence of circumstances is presented in the case confirming the legitimacy of the claims of both parties, but the decision does not reflect the process of their assessment, that is, the contradictions are not eliminated, this is not only evidence of an unmotivated decision that violates Part 4 of Art. 67 of the Code of Civil Procedure of the Russian Federation, but also a reason to assume a violation of the equality of the parties in the process. When the decision is also based only on the evidence of one side with inadequate or absent motives for disqualifying evidence from the other, this may indicate a biased court.

WHAT IS THE RIGHT SOLUTION?

In the Resolution of the Plenum Supreme Court Russian Federation No. 23 of December 19, 2003 “On a court decision” there is no requirement for correctness as such. The court decision is subject to legality and validity requirements, which are disclosed by this Resolution. In the context of the topic, we will quote only paragraph 3 of this document, which gives the concept of a justified decision: “A 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), as well as when it contains exhaustive conclusions of the court arising from established facts"It seems that the correctness of the decision on the merits presupposes that it satisfies the requirements of legality and validity, although the emphasis is still placed on the procedural side of the matter.
Let us note that the concept of a reasoned decision contains an important criterion - the compliance of the court’s conclusions with the fully and correctly established and proven circumstances of the case, thus taking into account all possible procedural violations that serve as grounds for canceling or changing the decision. We dare to suggest that satisfaction of this particular criterion ultimately determines the correctness of the entire decision. Since even with correct use rules of substantive law, correct definition significant circumstances, their confirmation by admissible and relevant evidence, the court may be seriously mistaken with the conclusions arising from the established evidence.
But one cannot help but notice the formal nature when determining a reasoned decision. The requirement of validity is rather a requirement for its logic, despite the fact that the definition literally does not affect the completeness of establishing significant circumstances, obviously recognizing it a priori. In our opinion, the Plenum of the RF Armed Forces dangerously neglected the substantive side, although it is precisely for the sake of a court decision with a specific content that restores a violated right that people go to court. The content of the decision is largely determined by the content of the court's conclusions, and they, in turn, depend on the interpretation of the collected evidence. The court, as we know, is free to evaluate evidence.
Depending on the interpretation of the evidence, we get different conclusions, but the logic (validity) remains. Therefore, we conclude that a substantively correct decision is not so much a decision, the conclusions of which follow from circumstances confirmed by relevant and admissible evidence, as a decision made based on the results of a professional and conscientious assessment by the court of the collected evidence, on the basis of which the court draws conclusions.
The above raises the key problem of any process in general - the unpredictability of the decision in cases where the outcome depends precisely on the court’s interpretation of the circumstances and the evidence confirming (refusing) them. The identified problem is connected with another - the risk for the parties that the court will predetermine the decision and simply subsume the reasoning part under the operative part. This is a gross but widespread procedural violation, which is the root, perhaps, of all the violations listed in Part 1 of Article 330 of the Code of Civil Procedure of the Russian Federation.

An innovation in the civil process is the expansion of the range of circumstances - grounds for review court orders according to newly discovered and new circumstances and their corresponding differentiation into two groups. The criterion for dividing the listed circumstances into groups was the moment of their occurrence: before the court decision entered into legal force- newly discovered circumstances; after the court decision enters into legal force - new circumstances. Unlike new circumstances, the list of newly discovered circumstances is not exhaustive due to the uncertainty of one of them - circumstances essential to the case that were not and could not be known to the applicant. However, in any case, they represent facts of objective reality that should have been included in the subject of proof, but were not included for reasons beyond the control of the court and the parties.

At the same time, new circumstances are not discovered, that is, they were not completely hidden before. They are new to the court only because it failed to discover them in time, although there was a practical opportunity for this - subject to greater activity of the parties or greater insight and qualifications of the court - there was.
Before determining the essence and characteristics provided for in Art. 392 Civil procedural code of the Russian Federation in 2002 (hereinafter referred to as the Code of Civil Procedure of the Russian Federation), it is necessary to formulate the concept of newly discovered circumstances as specific grounds for revising judicial acts that have entered into legal force.

For the first time at the legislative level, the definition of newly discovered circumstances is given in Part 3 of Art. 392 Code of Civil Procedure of the Russian Federation. Such circumstances mean the circumstances that existed at the time of the adoption of the court decision that were essential to the case. Meanwhile, in our opinion, this definition does not fully indicate birth characteristics newly discovered circumstances, only the traditional groups of these circumstances are listed.
In the legal literature, this concept has been interpreted differently.
However, despite this, all authors agree that the newly discovered circumstances are legal facts of objective reality, and not the conclusions or arguments of the persons involved in the case, and this is beyond doubt. All newly discovered circumstances are objective, existing phenomena, actions, events, processes of the material world, independent of consciousness, that were not known to the applicant or the court when considering the case and making a decision.

Therefore, the actions of people should also be considered objective legal facts, since they also exist independently of consciousness, although they are the result of conscious human activity. Newly discovered circumstances, in the presence of their inherent characteristics, can be both legal facts of a substantive nature and any other facts. At the same time, based on the meaning of Art. 392 of the Code of Civil Procedure of the Russian Federation, all facts that may be newly discovered circumstances in relation to the original act can be divided into two groups:
a) the circumstances to be established in the case at the initial decision of the judicial act (facts covered by the concept of the subject of evidence in the case);
b) legal facts that cannot be established in the case in accordance with the procedure civil proceedings(facts of criminal falsification of evidence or translation and criminal acts of judges or persons taking part in the case, committed in connection with the case).
The first group of legal facts is covered by paragraphs. 1, second - pp. 2 and 3 paragraphs 3 art. 392 Code of Civil Procedure of the Russian Federation.
However, the literature does not clearly understand the range of legal facts that are included in the subject of proof in the case and are undoubtedly recognized by everyone as legal facts that can have the significance of newly discovered circumstances.
Regarding the legal facts included in the subject of proof in the case, K.S. Yudelson included the facts that substantiate a claim or an objection against it, namely directly the legal-forming facts, the facts of active and passive legitimation, the facts of the cause of action.
S.V. Kurylev gives another classification of the facts that form the subject of proof in the case. He divides them into positive and negative facts, facts-phenomena and facts-states; facts that serve as the basis for the emergence of legal consequences, and facts that serve as the basis for differentiating these consequences.
L.P. Smyshlyaev expands the subject of proof, including in it, in addition to the listed legal facts, also the prerequisites for the emergence of a material legal relationship - legal capacity and legal capacity.
This point of view seems more reasonable. In any case, in relation to the institution under consideration, facts of lack of legal capacity or capacity of the parties during the consideration of the case discovered after the decision entered into legal force may be newly discovered circumstances.
D.M. Chechot, based on the requirements of Art. 49 of the Code of Civil Procedure of the RSFSR of 1964 (similar in content to Article 55 of the Code of Civil Procedure of the Russian Federation), believed that the subject of proof includes not only legal facts of a substantive nature, but also facts of procedural significance. He defined the subject of proof as the totality of all legal facts, the establishment of which ensures the correct, legal and reasonable resolution of the case.
Obviously, such a broad understanding of the subject of proof is, in our opinion, correct. But if this is so, then newly discovered circumstances included in the subject of proof may be legal facts not only of a substantive nature, but also of significant importance for the case and subject to establishment, since they can cause the emergence, change or termination of procedural relations .
Establishment of the facts included in the subject of proof, believes Yu.K. Osipov, is associated with the need to study many other circumstances that contribute to the correct assessment of procedural legal facts, evidentiary and some others. The listed circumstances, although they are objects of research, are nevertheless not covered by the concept of the subject of proof. It includes only those circumstances on which the fulfillment of the tasks of civil proceedings directly depends.
It seems that newly discovered circumstances may include other facts that have procedural significance and are also included in the subject of proof. N.B. Seider called them "procedural acts." These, as he said, are facts that determine procedural actions, which, although they are not decisive for the emergence of a procedural legal relationship and its further existence, are aimed at achieving the general goal of the process - the consideration and resolution of civil cases in order to protect violated or disputed rights, freedoms and legitimate interests of persons participating in the case. The result of these actions are court decisions that do not enter into legal force separately from the decision or other judicial act that completes the stage of the process.
The subject of proof is determined by the court and the persons participating in the case on the basis of the applicable norm of substantive law and during the process may, for one reason or another, be subject to changes. Thus, it may be affected by the applicant’s refusal to part of the stated requirements or, conversely, to present additional ones.
Newly discovered circumstances may also be legal facts that must be established by the court and are included in the subject of proof when making private rulings. The peculiarity of these facts is that, on the one hand, they entail the emergence of new procedural legal relations between the court and any enterprise, institution, organization, person, and on the other hand, they are consequences of a disciplinary, administrative, public or other legal nature for specific individuals. Therefore, issuing a private ruling without taking into account the circumstances essential to it may also violate the rights of persons who did not take part in the case, but who may be subject to disciplinary, administrative, public sanctions or punishment.
Legal facts that are not included in the subject of proof, but are part of the basis of the claim (statement, complaint) or objections to it - the so-called presumptive and prejudicial facts - can also be newly discovered circumstances. However, such circumstances cannot be well-known facts included in the basis of the claim or objections against it, since one of the signs of newly discovered circumstances is that they are unknown to the court and the applicant.
But, as noted, all of the above legal facts, both those included in the subject of proof in the case and not included in it, but subject to establishment in the case, may have the meaning of newly discovered circumstances. At the same time, it is important to emphasize that such facts can be both substantive and procedural facts of a legal nature. All of them are subject to establishment in the case, are equally significant for judicial decisions, therefore, being discovered after the latter entered into legal force, they are grounds for their revision. The exclusion of procedural and legal facts from the subject of proof, the limitation of the range of facts that can be newly discovered circumstances, leads to an unreasonable narrowing of the scope of the institution of consideration of civil cases based on newly discovered circumstances.
The concept of “newly discovered circumstances” is broader in content than the combined facts included in the subject of proof in the case, and other facts that must be established in the case and are important for its correct resolution. Newly discovered circumstances may include other facts, including those that were not subject to establishment in the case in civil proceedings. To them according to Art. 392 of the Code of Civil Procedure of the Russian Federation includes facts of criminal falsification of evidence or translation established by a court verdict that has entered into legal force, facts of criminal acts of persons participating in the case or judges committed during the consideration of a civil case.
This part of the facts is essential for the case and can cause both substantive and procedural consequences, as well as affect the legality and validity of judicial acts.
On the other hand, the given list of facts that may be newly discovered circumstances, and the given general characteristics allow us to draw a conclusion about the right of various judicial bodies to review relevant acts of justice in accordance with Art. 392 of the Code of Civil Procedure of the Russian Federation for certain reasons.
Undoubtedly, the grounds for consideration of civil cases based on newly discovered circumstances by the courts of first instance may be: legal facts included in the basis of the claim (application, complaint), or objections to it, other legal facts of a substantive or procedural nature included in the subject of proof according to the case, as well as legal facts that are not subject to establishment in the case, but are of significant importance for it. In other words, the basis for review of civil cases by the courts of first instance may be any group of newly discovered circumstances provided for in Art. 392 Code of Civil Procedure of the Russian Federation.
The issue of the right of higher courts to review their acts of justice is resolved differently. As a rule, the grounds for reviewing, based on newly discovered circumstances, acts of justice of higher courts cannot serve as legal facts of a substantive nature that are part of the basis for the claim or the objection to it. As an exception, due to newly discovered circumstances, which are facts included in the basis of the claim or an objection to it, decisions and rulings of higher courts, which changed the decision of the court of first instance or made a new decision, may be revised.
Of particular interest is the question of the relationship between the concepts of newly discovered circumstances (facts) and new evidence. In the legal literature, with some exceptions, there is an opinion that the grounds for reviewing judicial acts based on newly discovered circumstances may be circumstances (facts) unknown during the consideration of the case, but not new evidence of facts already examined by the court.
The literature expresses the view that consideration of a case based on newly discovered circumstances “may take place on the basis of the presentation of new evidence.” This formulation, in our opinion, is erroneous. Revision of judicial acts based on newly discovered circumstances cannot take place on the basis of the presentation of new evidence confirming or refuting the facts that were or should have been the subject of consideration by the court resolving the case.
The basis for revising a decision based on newly discovered circumstances is the discovery of new circumstances, legal facts, the existence of which neither the parties nor the court could know, but the existence of such circumstances must also be proven. It is impossible to allow the cancellation of a decision that has entered into legal force on the basis of only an unsubstantiated statement about the discovery of new circumstances. It is necessary to make sure that the specified circumstances really exist, otherwise the court decision will lose the stability and authority of an act of Russian justice.
It seems interesting to resolve the issue of the grounds for resumption of proceedings in the Code of Civil Procedure of the Polish Republic, in which the grounds are divided into two groups: 1) grounds for review of court decisions in connection with the “invalidity” of the proceedings (clauses 1, 2 of Article 401, Article 401.1) and 2) “restitution” grounds (§ 1, paragraphs 1, 2, § 2, 3, Article 403).
In addition, from § 2 Art. 403 of the Code of Civil Procedure of the Polish Republic, we see that, in addition to newly discovered circumstances, the basis for the resumption of proceedings includes newly established means of proof (evidence).
In the Code of Civil Procedure of the Russian Federation, in contrast to the Code of Civil Procedure of the Polish Republic, the grounds for reviewing cases based on newly discovered circumstances are clearly distinguished from the grounds for review in the manner of supervision, while in the Code of Civil Procedure of the Polish Republic, the “invalidity” of the proceedings serves as the basis for consideration of cases in the order of resuming proceedings (Article 401 , 401.1 Code of Civil Procedure of the Polish Republic) and by way of emergency audit (§ 1 Article 417 Code of Civil Procedure of the Polish Republic).
According to paragraphs 1 - 2 of Art. 401, Art. 401.1 of the Code of Civil Procedure of the Polish Republic “invalidity” of proceedings means that it is considered invalid due to a violation of the rules of procedural law specified in these articles.
New evidence not only can, but must be presented, but it must confirm the existence of new circumstances that provide grounds for reviewing judicial acts based on newly discovered circumstances. This position, writes L.S. Morozov, is confirmed in judicial practice.
Thus, in one of the rulings of the city court on the refusal to review the decision based on newly discovered circumstances, the judicial panel civil cases motivated the refusal to reconsider the decision by the fact that “at present the plaintiff has not presented any other evidence, therefore she has no reason to raise the question of reconsidering the case based on newly discovered circumstances.”
The Code of Civil Procedure of the RSFSR of 1923 did not contain any indication of the need to provide the court with evidence in support of the circumstances that are the basis for reviewing the decision, which, of course, should be recognized as a significant gap. This problem was not resolved not only in the Civil Procedure Code of the RSFSR of 1964, but also in the Civil Procedure Code of the Russian Federation.
Evidence of the presence of newly discovered circumstances must be presented to the court in all cases of review based on newly discovered circumstances and regardless of whose initiative the issue of review was initiated, because the court allowing the stated petition for review of the decision must be convinced of the existence of grounds for its review after entry into legal force. In this case, the opposing party should be given the right to challenge the existence of grounds for reviewing the decision and present evidence refuting the existence of new circumstances. This provision will be consistent with the principles of adversarial, optional and equal rights of the parties in civil process and will serve as a guarantee to prevent the unjustified cancellation of court decisions that have entered into legal force.
As a rule, newly discovered circumstances can be confirmed by any type of evidence.
However, it should be remembered that in civil proceedings there are special requirements for evidence. This refers to the admissibility of evidence, which means the ability to prove a given fact. a certain type evidence.
It is known that the norms civil law provide for the possibility of performing certain legal actions only in a certain form.
These are, for example, a will, a purchase and sale agreement, a loan agreement, a gift agreement for an amount exceeding ten minimum wages. For example, a loan agreement over ten minimum wages must be concluded in writing; if this requirement is not met, the law does not allow reference to witness testimony (Articles 161 - 162 Civil Code Russian Federation 1994).
From this follows the position that some legal facts can be proven not by any type of evidence, but only by a certain one.
It is necessary to distinguish between facts (circumstances) and evidence. Circumstances as facts subject to proof are contrasted with evidence as a means of establishing facts. In this case, evidence is considered as primary information, obvious or indisputably reliable, the presence of which does not need to be proven, and circumstances - as facts that must be established with the help of such information.
In the legal literature, the opinion is expressed that “judicial evidence is a fact obtained from sources provided for by law and in a manner provided by law, located with the sought-after trial a fact in a certain connection, thanks to which it can serve as a means of establishing the objective originality of the sought-after fact."
When comparing the concepts of “new evidence” and “newly discovered circumstances”, the following should be noted. Evidence in the case is 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 (Part 1 of Article 55 of the Civil Procedure Code RF).
New evidence in the case, discovered after the relevant judicial act has entered into legal force, represents new information (information) about the facts already examined by the court, additional knowledge about them, about their connection with other facts or about individual properties and the signs of these facts.
Newly discovered circumstances, on the contrary, are not information about the facts, but the facts themselves, which are important for the correct resolution of the case, for the adoption of legal and justified judicial acts, discovered after the entry into force of the corresponding act of justice.
In that significant difference these concepts.

Bibliography

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2. Zeider N.B. Civil procedural legal relations. Saratov, 1965. S. 64 - 65.
3. Kurylev S.V. Explanations of the parties as evidence in Soviet civil proceedings: Dis. ...cand. legal Sci. M., 1953. P. 9.
4. Kurylev S.V. Establishing the truth in Soviet justice: Author's abstract. dis. ... Doctor of Law. Sci. M., 1967. S. 17 - 18.
5. Morozova L.S. Revision of decisions based on newly discovered circumstances. M., 1999. S. 35 - 66.
6. Smyshlyaev L.P. Subject of proof and distribution of responsibilities for proof in Soviet civil proceedings. M., 1961. S. 14 - 16.
7. Tadevosyan V.S. Revision of court decisions and sentences based on newly discovered circumstances // Socialist legality. 1951. N 7. P. 37.
8. Shakaryan M.S. Revision, based on newly discovered circumstances, of decisions, determinations and decrees that have entered into legal force // Civil process. M., 1996. S. 413 - 416.
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CIRCUMSTANCES relevant to the case

What does the law say about them?

1. THE COURT DETERMINES what circumstances are relevant to the case

Article 56. Obligation of proof

2. The court determines what circumstances are relevant to the case, which side should prove them , brings up circumstances for discussion, even if the parties did not refer to any of them.

EXAMPLE

In the Determination on the preparation of the case for trial dated August 5, 2014, justice of the peace at precinct No. 17 of the Sovetsky district of Bryansk S.Yu. Diveeva determined

Legally significant circumstances in resolving this case are:

The fact of concluding an agreement between the parties for the maintenance of residential premises and the provision of utilities

- the fact of fulfillment of contractual obligations by the plaintiff

- fact of violation of contractual obligations by the defendant

- amount of debt for payment for housing and utilities

- no arrears in payment for housing and utilities.

2. THEY MAY BE IDENTIFIED INCORRECTLY

Article 330. Grounds for canceling or changing a court decision in appeal procedure

1. The grounds for canceling or changing a court decision on appeal are:

1) incorrect definition of circumstances, relevant to the case;

EXAMPLE

DEFINITION of the Supreme Court of the Russian Federation

The court also did not take into account that the administration of the municipality of Krasnodar did not comply with the procedure for the seizure of residential premises. In particular, the requirement for the demolition or reconstruction of the house Sokol O.E. was not directed. In addition, Sokol O.E. was not offered to pay the redemption price of the seized apartment, and from moving into the apartment<...>on the street<...>the defendants refused.

Articles 86 and 89 of the Housing Code of the Russian Federation, to which the court referred, regulate relations related to eviction from residential premises occupied under a social tenancy agreement, and therefore, were erroneously applied to controversial relations.

Under such circumstances, the Judicial Collegium for Civil Cases of the Supreme Court of the Russian Federation comes to the conclusion that the courts, when resolving this dispute, violated the norms of substantive law.

In accordance with Part 2 of Article 56 of the Civil Procedure Code of the Russian Federation, the court determines what circumstances are important for the case, which party must prove them, and brings the circumstances up for discussion, even if the parties referred to any of them.

Due to the incorrect application of substantive law, the court incorrectly identified and established circumstances relevant to the case; in particular, it did not establish whether the procedure for confiscating the land plot and residential premises for municipal needs was followed.

Violations of substantive law committed by the courts are significant and insurmountable, and therefore can be eliminated only by canceling the decision of the Leninsky District Court of Krasnodar dated April 24, 2013 and the appeal ruling judicial panel in civil cases of the Krasnodar Regional Court dated June 20, 2013 with the referral of the case for a new trial to the court of first instance.

3. THE COURT MAY EVEN AVOID FROM DETERMINING THEM

SCHEME OF OBJECTIONS regarding actions

Presiding officer (in accordance with Part 2 of Article 156 of the Code of Civil Procedure of the Russian Federation)

The presiding judge - despite our persistent requests, evades a clear and precise definition of the circumstances that are important for the correct resolution of the case, despite the fact that in accordance with Part 2 of Article 56 of the Code of Civil Procedure of the Russian Federation, the court determines what circumstances are important for the case, which party should to prove them, brings the circumstances up for discussion, even if the parties referred to any of them.

In our opinion, the legally significant circumstances in resolving this case are:

The fact of concluding an agreement between the parties for the maintenance of residential premises and the provision of utilities

The fact of fulfillment of contractual obligations by the plaintiff

Fact of violation of contractual obligations by the defendant

Amount of debt for payment for housing and utilities

No arrears in payment for housing and utilities.

The resulting uncertainty can be interpreted as preparation for a court decision in which motives will appear justifying the absence of an agreement between the plaintiff and the defendant:

- “the absence of an agreement does not cancel the requirement of the law to pay for consumed resources...”;

- “the absence of a written management agreement does not relieve the defendant from the obligation to pay for the maintenance and operation of public property...”;

- “the absence of an agreement with the HOA or management company does not mean the absence of legal relations for the provision of housing and communal services...”

In fact, the written provisions refer to a set of unwritten rules (“concepts”), to be guided by them means to attest to one’s belonging to the community in which one is supposed to “live according to concepts.”

4. THE COURT IS OBLIGATED TO CREATE CONDITIONS FOR ESTABLISHING FACTUAL CIRCUMSTANCES

Article 12. Administration of justice on the basis of competition and equality of the parties

2. Court, ..., provides persons participating in the case with assistance in realizing their rights, creates conditions for

- establishing factual circumstances

5. WHAT ARE THE RATES AND BY WHOM ARE THEY APPROVED?

Determination of the Supreme Court of the Russian Federation dated November 11, 2014 N 5-КГ14-92, the previously adopted judicial acts on the claim for the collection of debts for payment of utility bills were canceled, since the court’s collection of debts from the defendants without establishing legally significant circumstances is unlawful, and sent the case for a new trial. In the reasoning part of the decision it was decided:

“In this case, it was legally significant and subject to establishment, taking into account the stated claims and the applicable rules of substantive law, to clarify the following issues:

What control method apartment building, in which the defendants’ apartment is located, was chosen by the owners of the premises in this building;

Has the owners of the premises of this house chosen LLC REU Russian Monolit as a management organization and does it have the right to independently, on the basis of a concluded agreement, determine tariffs when calculating fees for the maintenance and repair of residential premises;

If a homeowners' association or a housing cooperative or other specialized consumer cooperative has not been created in this building, was a general meeting of premises owners held during the disputed period of time, at which the amount of payment for the maintenance and repair of residential premises was established;

What tariffs were used by the plaintiff when calculating fees for the maintenance and repair of residential premises, who approved them, the grounds for their application and the correctness of the calculations.

The correct resolution of the dispute by the court regarding the claims of REU Russian Monolith LLC against Podgornaya A.V., Podgorny O.A. depended on the clarification of these circumstances. on the collection of debt for maintenance of the apartment and utility bills, as well as according to the requirements of Podgornaya A.V. and Podgorny O.A. to LLC "REU "Russian Monolit" about recognizing the tariff for the maintenance and repair of residential premises as illegal, and the obligation to recalculate the fee.

However, the court did not establish these circumstances when resolving the case, in violation of the requirements of the Code of Civil Procedure of the Russian Federation, did not define them as legally significant for the correct resolution of the dispute, they were not included in the subject of evidence in the case and, accordingly, did not receive a legal assessment by the court.

Therefore, the court’s collection of debt from the defendants for maintenance of residential premises and utility bills without establishing the above legally significant circumstances is unlawful.

The violations of substantive law committed by the courts of first and appellate instances are significant and insurmountable, and therefore can only be corrected by canceling court decisions.”