Issuance of rulings in the court of first instance. Judicial definition, concept, essence and meaning of the ruling of the court of first instance - theoretical and legal study of judicial acts of courts of first instance

The court ruling must indicate (Article 225 of the Code of Civil Procedure of the Russian Federation):

the date and place of the ruling;
the name of the court that issued the ruling, the composition of the court and the secretary of the court session;
persons participating in the case, the subject of the dispute or the stated requirement;
the question about which the decision is made;
the motives on which the court came to its conclusions, and the reference to the law, on which the court was guided;
court order;
the procedure and term for appealing against a court ruling, if it is subject to appeal.

Despite the fact that the ruling can also be made in the courtroom, without being removed to the deliberation room, it must also contain all of the above points.

In the legal literature, the definitions of the court of first instance content is classified as: preparatory, precluding and final definitions.

preparatory definitions call the rulings issued by the court in the course of resolving and considering a civil case, aimed at resolving issues of a preparatory nature.

Repressive definitions in the literature are considered a court ruling on refusal to accept statement of claim, a court ruling to leave the statement of claim without consideration, a court ruling to refuse to approve a settlement agreement, a court ruling to refuse to accept an application for cancellation absentee decision and etc.

Final definitions taken out by the court at the end of the proceedings civil case if a judgment is not possible.

A special place in the civil process is occupied by private definitions. When revealing cases of violation of the law, the court may issue a private ruling, which it must send to the relevant organizations or relevant officials.

In turn, officials and relevant organizations within 1 month must send a notification of the measures taken on the private ruling of the court.

In case of failure to report on the measures taken, the guilty officials may be subject to a fine of up to 10 minimum wages.

58. Determination of the court of first instance (concept, types, legal force). The content and meaning of private court rulings.

Determination - a type of court decision by which the case is not decided on the merits.

Judicial rulings express the diverse administrative activities of the court.

Kinds definitions:

1. In relation to the main issue in the case, to the resolution of a civil case on the merits:

1. Definitions ending the process with dispute resolution (final).

a) on termination of the proceedings due to the plaintiff's refusal of the claim;

b) approving the settlement agreement of the parties.

2. Definitions that prevent the occurrence of a process or end it without a resolution or settlement of a dispute ( stoppers).

a) refusal to accept the statement of claim;

b) on termination of proceedings on the case on the grounds specified in the Code of Civil Procedure;

c) to leave the claim without consideration.

3. Definitions that ensure the normal course of the process until the case is resolved by the court of first instance(preparatory).

on the progress of the case (on the acceptance of the statement of claim, on the preparation of the case for trial and on the appointment of the case for trial; on leaving the statement of claim without movement; on the suspension of the proceedings on the case; on the adjournment of the trial of the case; on the extension or restoration of the procedural period; on transfer of the case to another court; on joining and separating claims);

concerning the involvement of new persons in the process or the replacement of an inappropriate defendant; on the involvement or admission of third parties; on satisfaction or rejection of challenges to the composition of the court, prosecutor, interpreter or secretary of the court session, etc.);

on the collection of evidence (on the admission of providing evidence; on the appointment of an examination; on the production of an on-site inspection; on the reclamation or attachment of written and material evidence; on calling witnesses, etc.);

on securing a claim, on hearing the case in a closed court session; on the imposition of a fine, etc.

4. Determinations regarding the decision and its execution. These include rulings on clarification of the decision; on its immediate execution; on securing the execution of a decision not subject to immediate execution; about correcting obvious arithmetic errors; on the postponement and installment plan of execution; about changing the order and method of execution; on issuance by the court of a duplicate of the writ of execution and court order; on indexation of the sums of money awarded; on the postponement of enforcement actions; on suspension of enforcement proceedings; on termination of enforcement proceedings; on bringing to responsibility for non-execution of judicial acts by a bank or other credit institution; on appealing against the actions of a bailiff; about reversing the execution of the decision, etc.

5. Court rulings issued on applications for reconsideration of decisions due to newly discovered circumstances, as well as rulings on issues of reversal of a decision in absentia, since they involve the possibility of the court that issued the said judicial decisions itself, without the intervention of higher judicial instances, to cancel its decision.

6. Private definitions resolved on issues that go beyond the scope of the dispute in this case. Having discovered violations of the law during the consideration of a civil case, the court has the right to issue a ruling, which it sends to the relevant organizations, officials for them to take measures. An organization or an official is obliged to report to the court about the measures taken by them under a private determination, in month.

Content: When issuing private rulings on violations of the law, the court is obliged to indicate what exactly these violations are expressed in. When the causes and conditions conducive to the offense were the result of particularly serious violations, relate to several organizations or officials, a particular determination can be sent not only to a higher organization (official), but also to regulatory authorities. When informing by a private ruling about a violation of the law by a particular official, the court, if necessary, must hear explanations from such persons in court session. The court does not prejudge what kind of punishment should be imposed on the person in respect of whom a special ruling is issued. In some cases, the court may not announce a private ruling in open court if premature disclosure of information about the violations found will make it difficult to eliminate them. But in this case, he announces to the persons participating in the case, and to the person to whom it concerns, the issuance of a private ruling. The announcement of a particular ruling in a court session shall be indicated in the minutes. If, during the consideration of the case, the court finds signs of a crime in the actions of a party, other participants in the process, an official or another person, it shall inform the prosecutor about this.

Such rulings are recorded in the minutes of the court session indicating: the issue on which the ruling is issued, the motives by which the court was guided (including references to laws), and the very content of the ruling (the operative part). In the ruling of the court, which in form represents an independent procedural document, in addition, the time and place of the issuance of the ruling, the name and composition of the court that issued the ruling, the surname of the secretary of the court session, the persons participating in the case, and the subject of the dispute, as well as the procedure and term appeal against the ruling.

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Introduction
Chapter 1. The essence of the ruling of the court of first instance
1.1 The concept and features of the ruling of the court of first instance
1.2 Types of rulings of the court of first instance
Chapter 2. Characteristics of the ruling of the court of first instance
2.1 The procedure for issuing and legal problems arising in the process of issuing a ruling of the court of first instance
2.2 The content of the ruling of the court of first instance and legal problems arising in this area
Conclusion
Bibliography
Introduction

In the modern period, it is judicial protection that becomes the main way to protect the rights, freedoms and legally protected interests of citizens and organizations. Under these conditions, the load on the organs judiciary significantly increased, and, accordingly, the number of various judicial acts increased.

Appearance huge amount acts of various courts necessitated bringing them into a certain system.

The court in the administration of justice is a body of judicial power endowed with power to apply the norms of substantive and procedural law. The court clothes all its actions in the form of judicial acts provided for by the procedural law, which is connected with the current requirements of the civil procedural form.

The court of first instance may issue judgments in the form court order, absentee decision, decision and definition.

The definition, first of all, is the basis for the emergence, change or termination of procedural rights and obligations. Therefore, the dynamics of the development of civil procedural relations and the movement of a civil case are largely connected with the issuance of court rulings.

The purpose of this course work is to study the definition of the court of first instance.

In this term paper you need to solve the following particular problems:

1. give a concept and consider the features of the ruling of the court of first instance;

2. to characterize the types of rulings of the court of first instance;

3. disclose the procedure for issuing and legal problems arising in the process of issuing a ruling of the court of first instance;

4. characterize the content of the ruling of the court of first instance and reveal the legal problems arising in this area.

The object of the study is social relations that develop in the process of studying the ruling of the court of first instance.

The subject of the study is the ruling of the court of first instance.

The theoretical basis of this course work are the provisions general theory law, civil procedural law and other branches of law.

The methodological basis of this course work is the formal-logical, general scientific, system-structural methods of cognition of objective reality.

Chapter 1

1.1 Concept andfeatures of the ruling of the court of first instance

Definition- a type of judicial act, which is issued by the court on issues requiring resolution during the trial, but which does not resolve the case on the merits. Definitions take important place in the system of judicial acts, which is due to the following.

First, the definitions are a wide range issues, they draw up all significant procedural actions performed by the court. As rightly noted, the definitions resolve all issues related to the initiation of judicial proceedings, they fix the main milestones of its development, and in some cases, the completion of the proceedings.

Secondly, definitions constitute the most extensive and diverse group of judicial acts.

Thirdly, the importance of definitions as judicial acts is growing more and more. This is due to the development of the science of procedural law, the increasing detail judicial stages and procedures.

For example, the stage of preparation for the consideration of a case, the procedure for reviewing a judicial act by way of supervision has changed significantly.

D.M. Chechot considers as a judicial ruling such a decision of a judge that arises in connection with and regarding the consideration and resolution on the merits of a substantive legal dispute that is the object of the process.

M.G. Avdyukov calls the definitions of court decisions containing the court's answer to all other questions (except the main question of the case) that arise during the process.

Approximately the same is believed by E.V. Vaskovsky, pointing out that the issuance of a ruling is a resolution of side claims of the parties related to the claim.

According to N.B. Zeider, judicial rulings issued on certain particular issues of the case do not give an answer on the merits of the case being considered by the court.

These definitions resolve various separate issues that arose before the court in the consideration of the case. Similar formulations are given by S.N. Abramov, M.A. Gurvich, K.S. Yudelson.

The most complete and legally beautiful definition of the court ruling is presented by V.L. Isachenko, pointing out that the definition is called “such a court decision, by which it does not give an answer on the merits of the claim and does not establish material civil legal relations between the disputants, but resolves any side issues, even if such a resolution ends or terminates the proceedings forever, but without resolving the substance of the dispute, without establishing material civil relations between the litigants.

The above formulations do not contain an enumeration of those properties of the concept under study that distinguish it from similar or related legal phenomena - final decisions, rulings, court orders.

The decision of the court of first instance has certain features, among which the following can be distinguished:

definitions are adopted in the course of constitutional, civil, administrative proceedings;

definitions are an act of expressing the will of the state, have a generally binding character;

The law regulates a special procedural procedure for issuing rulings to individual cases. Definitions are adopted in the form of an independent act and in protocol form;

Depending on the impact on the judicial process, the definitions can be preparatory, preclusive, final, signaling; it is necessary to single out separately court rulings on applications for retrial of cases due to newly discovered circumstances, rulings on issues of canceling a default decision;

definitions create, change and terminate material and procedural legal relations;

The court may issue both definitions named and not named in the law;

rulings are issued by the court alone or collectively;

· Determinations can be challenged, and in a special order. Determinations may not be subject to independent appeal outside of contesting a judicial act issued on the merits of the dispute; determinations adopted in protocol form are not subject to appeal;

· Determinations may be changed by the court that issued them, or they may be subject to revision only on appeal to a higher court. Procedural rulings may be changed by the court that issued them;

· Determinations enter into legal force from the moment they are issued and are executed either immediately or in the manner prescribed by law or court.

A feature of court rulings is that they do not resolve the dispute on the merits and do not provide for the material rights and obligations of the parties to the dispute.

The definition resolves procedural issues, although in some cases the definitions provide for substantive rights and obligations Vitushkin V.A. Definitions Constitutional Court Russian Federation: features of a legal nature. M.: NORMA, 2005. S. 85. .

So, in accordance with Art. 108 of the Family Code of the Russian Federation "Family Code of the Russian Federation" dated 12/29/1995 No. 223-FZ (as amended on 12/23/2010) // Collection of Legislation of the Russian Federation, 01/01/1996, No. 1, art. 16. in a case on the recovery of alimony, the court has the right to issue a decision on the recovery of alimony before the entry into force of the court decision on the recovery of alimony; when recovering alimony for minor children - until the court makes a decision on the recovery of alimony. In these cases, a court ruling is issued.

Definitions are made at all stages civil process, starting with the acceptance of the application (refusal to accept, return of the application) and ending with the termination of the proceedings, leaving the application without consideration, etc. Unlike a court decision, which is issued as the only court ruling during the consideration of a dispute, there may be several definitions A.M. Prejudicial connection of judicial acts. M.: Wolters Kluver, 2007. S. 89. .

The scientific doctrine has not yet fully developed the definition of the concept in question in the totality of its properties.

Therefore, in order to clarify the content of the concept of “court ruling”, it is necessary to establish the types of definitions classified for one reason or another.

1.2 Types of rulings of the court of first instance

According to the degree of influence on the movement of the process, the definitions are divided into the following types: preparatory, suppressive, final, signaling (private (special)).

Preparatory definitions. With their help, the court regulates the normal course of the process, prepares the final resolution of the dispute.

In pre-revolutionary doctrine, such definitions were called preliminary measures of the court, preparatory orders, definitions that guide and direct the movement of the process. K. Malyshev called such definitions the collective term "private".

Calling the definitions private, Malyshev emphasizes that they “make it possible to immediately resolve during the process various particular issues that are ready for resolution, and thus prepare the final act of the decision, split and analyze the material of the process without losing sight of last result it, in which all this preparation is combined and receives the legal force of the decision ”Course of civil justice. T. 1 / Malyshev K. S.-Pb.: Type. MM. Stasyulevich, 1875. S. 410. .

Malyshev refers to the signs of particular (preparatory) definitions as follows. Firstly, such definitions, without deciding the case on the merits, are included in the resolution of private, side issues arising in the course of legal proceedings. Secondly, after the decision of such a ruling, the possibility of resolving the dispute on the merits remains, or such rulings follow the decision of the court and contribute to its execution.

Preparatory rulings may be issued before the trial, during the trial, after the adoption of the judicial act. These definitions include:

rulings on the progress of the case (for example, the ruling on leaving the statement of claim without movement, on postponing the proceedings);

determinations on the issues of involving new participants in the process (for example, a determination on the replacement of an improper defendant, on the involvement of third parties);

Determinations on the collection of evidence (on the appointment of an examination, on the summoning of witnesses);

definitions of a substantive-legal nature (on securing a claim, on imposing a fine);

· determinations on the restoration of procedural terms, determinations on the execution of a judicial act (on the postponement or installment plan of the execution of a judicial act).

These definitions do not affect the essence of the dispute, but relate to particular issues that arise in the course of the proceedings.

The essence of restrictive definitions is that they impede the progress of the case. However, such definitions are not conclusive, since the process can be continued in the future. Such determinations can be made before the start of the consideration of the case, when the court in a civil process refuses to accept a statement of claim, for example, on the grounds of the existence of a decision on an identical claim that has entered into legal force (Article 134 of the Code of Civil Procedure of the Russian Federation "Civil Procedure Code of the Russian Federation" dated 14.11 .2002 No. 138-FZ (as amended on 12/23/2010) // Collection of Legislation of the Russian Federation, 11/18/2002, No. 46, article 4532.).

Preventive rulings are also adopted during the trial and impede the progress of the process, which can be continued only after the elimination of the conditions that currently impede the correct resolution of the case Vlasov AA Civil process. M.: Yurayt, 2011. S. 217. . Unlike decisions, preventive rulings do not affect the merits of the case, but only state the fact of the procedural impossibility on various grounds for considering the case in court.

Final rulings are made in the case when, by virtue of the will of the parties, the further movement of the process becomes pointless. This situation arises not due to the plaintiff's lack of the right to claim or violation of the procedure for going to court, but when the plaintiff refuses to claim or when the parties come to the need to conclude a settlement agreement. The final rulings, by their legal nature, are closest to judicial decisions.

Moreover, if the substantive dispute between the parties is resolved by the court by issuing a decision, then with the help of final rulings, the process in the case ends with the settlement of the dispute between the parties. That is, one or both parties, on their own initiative, determine their substantive legal relations that were the subject of litigation.

If the refusal of the claim, the amicable agreement do not contradict the law, the interests of third parties, the court, by its authority, issues a ruling to terminate the proceedings, which from a procedural point of view is an analogue of the decision.

Signaling (private, special) definitions. These definitions are not related to the progress of the case, however, they refer to the circumstances of the case, to the persons participating in the case. According to Art. 226 of the Code of Civil Procedure of the Russian Federation, such definitions are a way for the state to respond to violations of the law by organizations and officials who are obliged to inform the court within a month about the measures taken to correct violations.

The existence of private definitions at the present stage of development of the civil process is rather doubtful. It should be noted that the arbitration procedural legislation formally abandoned the institution of a private definition.

Apparently there are several reasons for this. Firstly, the powers of the court primarily consist in the prompt and correct resolution of the dispute in accordance with the evidence presented by the parties.

Secondly, the presence of violations of the law in the actions of officials is the basis for initiating a criminal case against them or an administrative offense case. Thirdly, as many years of experience have shown, private rulings issued by the court have not become completely effective mechanism in preventing violations of the law.

Expanding the above list, I.A. Piskarev supplements it with the following types of definitions.

Determinations regarding the decision and its execution. Such definitions may clarify the meaning decision court, either to clarify its content and turn it to immediate execution, or to ensure a quick and real execution of a judicial act. However, the court by such definitions is not entitled to re-adjudicate the case on the merits, but may change the operative part.

The allocation of such definitions as a separate species seems to be largely doubtful, since such definitions still belong to preparatory definitions.

Court rulings on applications for review of cases due to newly discovered circumstances, rulings on issues of reversal of a default decision. The peculiarity of these definitions is that they are associated with the right of the court to independently cancel its decision. At the same time, such definitions cannot be attributed to either final or suppressive ones. It is also difficult to call such definitions preparatory, since they affect the essence of the dispute. Thus, their allocation to separate view reasonably justified.

R.E. Ghukasyan distinguishes the following types of definitions: preparatory, preventive, final, for the implementation of the decision, private definitions (for civil proceedings) Civil procedural law Russia / Ed. M.S. Shakarian. M.: Norma, 2008. S. 286. .

For the purposes that are provided by the issuance of definitions, depending on the place in litigation V.V. Yarkov distinguishes the following types of definitions:

determinations made at the stage of initiating a case and its preparation for trial;

determinations at the stage of litigation;

· Determinations on the termination of proceedings in the case without making a decision, determinations related to the correction of the shortcomings of the decision made Civil process / Edited by VV Yarkov. M.: Wolters Kluver, 2009. S. 261. .

According to the form of making and fixing definitions are divided into two types. The first group of definitions is an entry in the minutes of the court session. These are the so-called protocol definitions. The second group consists of definitions issued in the form of a separate independent act. If the court ruling is drawn up as an entry in the minutes of the court session, such ruling does not contain an introductory part and an indication of the time limit and procedure for appealing, since these rulings do not block the progress of the case. The protocol definition does not have a strictly defined form, but it must contain the issue to be decided by the court, the motives and the resolution of the court.

Under the motives of the definition, one should understand its factual and legal grounds. The operative part of the ruling is a statement of the content of the procedural action that the court draws up as a ruling. Such rulings are made without removing the judges to the deliberation room.

Preventive and final rulings, as well as rulings subject to appeal by virtue of a direct indication of the law, cannot be drawn up in the protocol form.

If the ruling is issued in the form of a separate procedural document, it, like a court decision, must consist of four parts: introductory, descriptive, motivational, resolutive.

The rulings may be changed by the court that issued them, and may be subject to revision only by way of appeal to higher judicial bodies.

The court has the power to change the definition following conditions:

· the court has the right to change by addition only preparatory definitions. Amended definitions should not be of the nature of preclusive or final;

· Circumstances must change to such an extent that the previously valid court resolution does not meet the requirements for a speedy and correct resolution of the dispute.

Restrictive and final rulings are subject to revision only on appeal.

As a rule, the rulings are aimed at protecting the procedural rights of persons participating in the process, for example, the ruling on the appointment of a trial, on calling witnesses. Such definitions are of a service nature. However, some definitions, resolving procedural and legal issues, also protect the material rights of persons, such as: a ruling on securing a claim, a ruling on approving a settlement agreement, on a delay or installment plan for the execution of a judicial act.

Chapter 2. Characteristicsrulings of the court of first instance

2.1 The procedure for issuing and legal problems arising in the process of issuing a ruling of the court of first instance

The procedure (procedure) for issuing a ruling may vary. By general rule the ruling of the court, as well as the judgment, is made in the deliberation room. Before leaving to the deliberation room, the court must seek the opinion of the persons participating in the case on the content of the ruling to be issued.

If the consideration of the case takes place collectively, then the ruling by the court is carried out in the manner prescribed by Part 1 of Art. 15 of the Code of Civil Procedure: all issues arising during the consideration of the case are resolved by the judges by a majority of votes; none of the judges has the right to abstain from voting; the chairman votes last.

On simple issues, the Code of Civil Procedure allows for the possibility of a ruling by a court or a judge without being removed to the deliberation room, i.e. after the on-site meeting. Whether the issue is complex and whether it needs to be discussed in a deliberation room is decided by the court itself or the judge considering the case, based on the substance of the issue, the opinion of the persons participating in the case, and the materials of the case under consideration.

Determinations issued by the court at a court session without leaving the deliberation room shall be entered into the minutes of the court session and, in cases of refusal to satisfy the stated petition, must contain the reasons for the decision.

Regardless of the procedure for issuing a court ruling - in the deliberation room or without being removed to the deliberation room, the ruling must be announced immediately after it is issued by the court. This rule is connected with the essence of procedural issues that are resolved by judicial rulings and determine the further movement of the entire civil case. Thus, by the decision of the justice of the peace of the 242nd judicial district of the Serpukhov judicial district of February 9, 2006 and by the additional decision of the same justice of the peace of February 15, 2006, the claims were partially satisfied. By the decision of the justice of the peace dated April 11, 2006, N.'s application for the restoration of the deadline for filing appeal left unsatisfied. The appeal ruling of the Serpukhov City Court dated June 7, 2006 canceled the above ruling of the justice of the peace and N. restored the time limit for appealing the decision of the court of first instance.

On July 25, 2006, the Serpukhov City Court issued a private ruling against lawyer Z., who represented the interests of the defendant in court, which was brought to the attention of the leadership of the Moscow Regional Bar Association and the President of the Chamber of Lawyers for the Moscow Region.

IN supervisory complaint lawyer Z. raises the question of the abolition of the private ruling as decided with a significant violation of the rules of procedural law.

By the decision of the judge of Moscow regional court Verdiyana G.V. dated April 24, 2007, the case was referred for consideration on the merits to the court of supervisory authority - the Presidium of the Moscow Regional Court.

In accordance with Art. 387 of the Code of Civil Procedure of the Russian Federation, the grounds for canceling or changing judicial decisions of lower courts in the exercise of supervision are significant violations substantive or procedural law.

After checking the case materials and discussing the arguments of the supervisory appeal, the presidium finds the private ruling of the court subject to cancellation.

According to Part 1 of Art. 226 of the Code of Civil Procedure of the Russian Federation, if cases of violation of the law are revealed, the court has the right to issue a private ruling and send it to the relevant organizations or relevant officials, who are obliged to report on the measures they have taken within a month. Within the meaning of Part 1 of Art. 224 of the Code of Civil Procedure of the Russian Federation, decisions of the court of first instance, by which the case is not resolved on the merits, are taken out in the deliberation room. Meanwhile, it follows from the minutes of the court session of 25 July 2006 that the court of appeal did not leave for the deliberation room to issue a private ruling.

When issuing a private ruling, the court of appeal proceeded from the fact that lawyer Z., who did not appear at the court session in this civil case, at the same time took part in the court session in another case, considered on the same day in the Serpukhov City Court.

However, the time for consideration of another case, referred to by the court, goes beyond the consideration of the case on the claim of GSK-1 Soyuz against N. for the recovery of debt for the maintenance of the garage and interest for the use of other people's money. This circumstance also indicates that the particular ruling in the present case was issued outside the deliberation room and in more late deadline.

The violation committed by the Serpukhov City Court is significant, which serves as a basis for the cancellation of the private ruling.

In the event of disagreement between the participants in the process when resolving any issue in the course of issuing a ruling or in cases where the ruling can be appealed in accordance with Art. Art. 331, 371 Code of Civil Procedure of the Russian Federation, it must be submitted in the deliberation room in the form of a separate document. When it is necessary to issue a reasoned ruling, the court must also issue it in the deliberation room.

So, in accordance with clause 10 of the Decree of the Plenum of the Supreme Court of the Russian Federation of November 5, 1998 No. 15 “On the application of legislation by the courts when considering cases of divorce” in cases of divorce in cases where one of the spouses does not agree to terminate the marriage , court in accordance with paragraph. 2 Article. 22 of the RF IC has the right to postpone the proceedings by setting the spouses a period for reconciliation within three months. Depending on the circumstances of the case, the court has the right, at the request of the spouse or on its own initiative, to postpone the proceedings several times, however, so that in total the period of time provided to the spouses for reconciliation does not exceed the period of three months established by law.

The period fixed for reconciliation may be reduced if the parties so request, and the reasons indicated by them will be recognized by the court as valid. In these cases, a reasoned ruling must be issued. The ruling of the court to postpone the proceedings for reconciliation of the spouses cannot be appealed in cassation, t.to. it does not prevent further progress of the case.

court of first instance legal

2.2 The content of the ruling of the court of first instance and legal problems arising in this area

The law imposes certain requirements on the content of the court ruling. A written court ruling must consist of introductory, descriptive, motivational and resolutive parts.

The ruling, which is issued in the deliberation room, must indicate the time and place of the issuance of the ruling, the composition of the court, the secretary of the court session. If a prosecutor and a representative were involved in the case, then the ruling must contain an indication of these participants in the process.

A clear indication of all the details makes it possible to determine the procedural status of the participants. The subject of the dispute and the claims of the plaintiff help the court to clarify the essence of the dispute.

Thus, in the descriptive part of the ruling, the question to be resolved by the court ruling should be raised. The opinion of the persons participating in the case is stated. The evidence of the parties presented in support of their claims, and objections to them are given. The ruling must justify the conclusion of the court on this issue. As for the content of the motivational part of the definition, there should be an indication of the motives and a reference to the rule of law. Often the courts do not indicate the motives in the determination.

Thus, V. filed a lawsuit against LLC CB Renaissance Capital with the Dzerzhinsky District Court of St. Petersburg demanding the invalidation of the terms of the loan agreement concluded between V. and LLC CB Renaissance Capital.

According to paragraph 2 of part 1 of Art. 135 Code of Civil Procedure of the Russian Federation, the judge returns the statement of claim if the case is beyond the jurisdiction of this court.

Returning the statement of claim, the court of first instance proceeded from the fact that the parties are not entitled to change the exclusive and generic (subjective) jurisdiction, which is determined by law. Civil procedural legislation does not contain other restrictions. An agreement on jurisdiction may be included in a civil law contract, including an accession contract. In accordance with clause 12.2 of the General Conditions for Granting a Credit, all disputes between the parties are subject to resolution in accordance with the legislation of the Russian Federation in a court of general jurisdiction at the location of the Bank. The contract defines the contractual jurisdiction.

Guided by the principle of dispositiveness of the civil process, the parties, using the right to choose between several courts, voluntarily determined the territorial jurisdiction for all cases related to the execution of contracts, including this dispute. Such agreement of the parties is not any restriction of the rights of the parties, does not deprive the parties of the right to judicial protection. Since the agreement of the parties on the definition of territorial jurisdiction, reached on the basis of Art. 32 of the Code of Civil Procedure of the Russian Federation, is mandatory not only for the parties, but also for the court, then there are no legal grounds for accepting a statement of claim from the Dzerzhinsky District Court of St. Petersburg, the claim is not subject to consideration in the Dzerzhinsky District Court of St. Petersburg. The Judicial Collegium cannot agree with the conclusion of the Court of First Instance.

The requirements for the content of the court ruling are provided for in Art. 225 Code of Civil Procedure of the Russian Federation.

According to paragraph 5 of Art. 225 of the Code of Civil Procedure of the Russian Federation, the ruling of the court must indicate the motives on which the court came to its conclusions, and a reference to the laws by which the court was guided.

In such circumstances, given that the case file lacks both the disputed loan agreement and General terms granting a loan, judicial board deprived of the opportunity to assess the legitimacy of the ruling issued by the district court on the return of the statement of claim B. In this situation, the court ruling cannot be recognized as lawful and justified, it is subject to cancellation with the transfer of materials on the statement of claim to the court of first instance for consideration from the adoption stage.

In particular, by the Determination of the Smolninsky District Court of St. Petersburg, the statement of claim of OJSC “Baltic Investment Bank” against Ch.M. and Ch.E. left without movement, as filed without complying with the requirements of Art. 132, paragraph 2 of Art. 71 Code of Civil Procedure of the Russian Federation. The plaintiff was asked to correct the shortcomings indicated in the definition.

In a private complaint, Baltic Investment Bank JSC asks to cancel the court ruling, considers it incorrect.

The judicial board, having studied the materials on the statement of claim, having discussed the arguments of the private complaint, considers the court ruling to be canceled.

Leaving the statement of claim of JSC "Baltic Investment Bank" motionless, the court referred to the fact that it was filed without complying with the requirements established by Art. 132, paragraph 2 of Art. 71 Code of Civil Procedure of the Russian Federation, since the plaintiff did not indicate the outgoing number of the statement of claim sent to the court on behalf of legal entity, as well as duly certified copies of the documents specified in the statement of claim and confirming the circumstances on which the plaintiff bases his claims, a duly executed power of attorney of the person who signed the statement of claim on behalf of BaltInvestBank OJSC is not presented.

The judicial collegium cannot agree with the arguments of the court, believes that the circumstances pointed out by the court could not serve as a basis for leaving the application without movement, an obstacle to the exercise of the plaintiff's rights to judicial protection, given that in the text of the application the plaintiff indicated what violation of his rights, formulated the requirements, indicated the circumstances on which he bases his claims, evidence that, in his opinion, can confirm these circumstances, presented the documents available to him.

The court's ruling in terms of indicating the need to submit a properly executed power of attorney of the person who signed the statement of claim on behalf of Baltic Investment Bank OJSC cannot be recognized as complying with the requirements of Art. 225 Code of Civil Procedure of the Russian Federation, does not contain the motives on which the court came to its conclusions, references to the laws that guided the court.

In addition, at a meeting of the judicial board, the representative of the plaintiff explained that when filing a statement of claim with the court, they were provided with a genuine power of attorney confirming his authority.

In view of the foregoing, the Judicial Board finds the determination subject to cancellation.

The operative part must contain clear and concise conclusions of the court on the issue being resolved. So, for example, when the proceedings are adjourned, the date and time for which the hearing of the case is scheduled must be indicated. The Code of Civil Procedure establishes some features of the content of definitions. So, for example, the court ruling on a letter of request should briefly outline the content of the case under consideration and indicate information about the parties, their place of residence or location, and also contain the circumstances to be clarified; evidence to be collected by the court executing the order of the court (part 2 of article 62 of the Code of Civil Procedure); in the ruling on the return of the statement of claim, the court indicates which court the applicant should apply to if the case is beyond the jurisdiction of this court, or how to eliminate the circumstances that prevent the initiation of a case (part 2 of article 135 of the Code of Civil Procedure); in the court ruling on the appointment of an additional or repeated examination, the motives for the disagreement of the court with the previously given opinion of the expert (experts) must be stated (part 3 of article 87 of the Code of Civil Procedure). If the court disagrees with the expert's opinion, it can be expressed in the court ruling on the appointment of an additional or repeated expert examination (part 2 of article 187).

The ruling on preparing the case for trial must indicate the actions to be taken by the parties, other persons participating in the case, as well as the timing of these actions to ensure the correct and timely consideration and resolution of the case (part 1 of article 147 of the Code of Civil Procedure); in the court ruling on the approval of the settlement agreement of the parties, the motives of the concluded settlement agreement must be indicated, and an indication must also be given to terminate the proceedings. In the court ruling to terminate the proceedings, it must be indicated that re-appeal to the court in a dispute between the same parties, on the same subject and on the same grounds is not allowed (Article 221 of the Code of Civil Procedure).

The Decree of the Plenum of the Supreme Court of the Russian Federation dated January 20, 2003 No. 2 “On some issues that have arisen in connection with the adoption and entry into force of the Civil Procedure Code of the Russian Federation” indicates that, according to Part 4 of Art. 22 Code of Civil Procedure of the Russian Federation, a case in which several interconnected claims are brought, some of which are under the jurisdiction of a court of general jurisdiction, and others are subject to arbitration, is subject to consideration and resolution in a court of general jurisdiction, if separation of these claims is impossible, the judge issues a ruling on accepting the claims under jurisdiction court of general jurisdiction, and on the refusal to accept the claims under the jurisdiction of the arbitration court.

Very important is the provision on the content of the ruling of the court, issued in the event that, when filing an application or considering a case in a special proceeding, it is established that there is a dispute about the law within the jurisdiction of the court, the court issues a ruling on leaving the application without consideration, in which it explains to the applicant and other interested persons their right to resolve the dispute in the order of action proceedings.

In cases of recognizing a citizen as legally incompetent, the court, if the citizen against whom the case is initiated clearly evades from undergoing an examination in a court session with the participation of a prosecutor and a psychiatrist, may issue a ruling in which it indicates the need for a forced referral of a citizen for a forensic psychiatric examination (Art. 283 Code of Civil Procedure).

Of great importance for the correct consideration of cases of calling proceedings is the content of the ruling governing the actions of the judge after the adoption of an application for the invalidation of a lost bearer or order security and for the restoration of rights to them.

The ruling must contain an indication that the person who issued the document is prohibited from making payments or issuance on it, and also indicates the obligation to publish certain information in a local periodical at the expense of the applicant (Article 296).

In the court ruling on the initiation of a case on a new claim in connection with the loss of judicial proceedings, this circumstance must necessarily be reflected (Article 316 of the Code of Civil Procedure).

The decision of the court of first instance, which has entered into legal force, acquires the same legal consequences as the decision of the court. This means that with the entry into force of a court ruling, it has the properties of exclusivity, irrefutability, enforceability and prejudice. All court definitions have the properties of irrefutability and enforceability.

At the same time, most of them (in particular, this concerns preparatory definitions) must be immediately executed by the persons to whom they are addressed, even before they enter into force and acquire the property of irrefutability. Most of them cannot be appealed by filing a private complaint, but can only be appealed as part of a complaint against the entire decision as a whole.

The possibility of appealing court rulings in an appellate or cassation procedure is allowed only in cases where this is provided for by the norms of the Code of Civil Procedure of the Russian Federation or the ruling excludes the possibility of further progress in the case.

Conclusion

So, we have completed all the tasks set in this course work, namely:

1. gave the concept and considered the features of the ruling of the court of first instance;

2. characterized the types of rulings of the court of first instance;

3. disclosed the procedure for issuing and legal problems arising in the process of issuing a ruling of the court of first instance;

4. gave a description of the content of the ruling of the court of first instance and revealed the legal problems arising in this area.

From the foregoing it is necessary to formulate the following conclusions.

The definition of the court of first instance is a type of decision of the court of first instance or judge, by which the case is not resolved on the merits.

Definitions have the same features as all decisions of the court of first instance.

Judicial rulings express the diverse administrative activities of the court.

The criterion for classifying the rulings of the court of first instance is their attitude to the main issue in the case, to the resolution of the civil case on the merits.

According to this criterion, six types of judicial rulings can be distinguished: rulings that end the process with the settlement of the dispute; definitions preventing the emergence of a process or ending it without resolving or settling the dispute (preventive definitions); definitions that ensure the normal course of the process until the case is resolved by the court of first instance (preparatory definitions); determinations regarding the decision and its execution; a special position is occupied by court rulings issued on applications for reconsideration of decisions due to newly discovered circumstances, as well as rulings on issues of reversal of a decision in absentia, since they involve the possibility of the court that issued the said judicial decisions itself, without the intervention of higher judicial instances, to cancel its decision ; particular definitions are decided on issues that go beyond the scope of the dispute in this case.

Determinations are issued by the court, usually in a deliberation room, in the same manner as the decision. When resolving simple issues, the court may issue a ruling after a meeting on the spot, without retiring to the deliberation room. Such rulings are recorded in the minutes of the court session indicating: the issue on which the ruling is issued, the motives by which the court was guided (including references to laws), and the very content of the ruling (the operative part).

In theory and practice of application legal regulations, regulating issues of issuance, content, appeal, execution of court rulings, there are problems. It is important that from right approach the resolution of these issues often depends on the issuance of a lawful and reasonable judicial act on the merits of the dispute.

Bibliography

Normative legal acts:

1. "The Constitution of the Russian Federation", adopted by popular vote on December 12, 1993, published in Rossiyskaya Gazeta, No. 237, December 25, 1993 (subject to amendments made by the Laws of the Russian Federation on amendments to the Constitution of the Russian Federation dated December 30, 2008 No. 6-FKZ, dated December 30, 2008 No. 7-FKZ) // Collection of Legislation of the Russian Federation, January 26, 2009, No. 4, art. 445.

2. "Civil Procedure Code of the Russian Federation" dated November 14, 2002 No. 138-FZ (as amended on December 23, 2010) // Collection of Legislation of the Russian Federation, November 18, 2002, No. 46, art. 4532.

3. “Family Code of the Russian Federation” dated December 29, 1995 No. 223-FZ (as amended on December 23, 2010) // “Collected Legislation of the Russian Federation”, 01.01.1996, No. 1, art. 16.

Arbitrage practice:

1. Ruling of the St. Petersburg City Court dated 08.02.2010 No. 1471 “The absence in the court ruling of the motives on which the court came to the conclusion that the case was beyond the jurisdiction of this court, in particular, the absence of the disputed loan agreement itself, containing conditions on contractual jurisdiction, is the basis its cancellation and return of the claim for consideration from the acceptance stage” // SPS Consultant Plus.

2. Determination of the St. Petersburg City Court dated October 19, 2009 No. 13663 “The court ruling on leaving the application without movement in terms of indicating the need to provide a properly executed power of attorney of the person who signed the statement of claim does not meet the requirements of Article 225 of the Civil Procedure Code of the Russian Federation, since does not contain the motives on which the court came to its conclusions, and references to the laws that guided the court” // SPS Consultant Plus.

3. Decree of the Presidium of the Moscow Regional Court of May 16, 2007 No. 318 in case No. 44g-115 / 07 “The private ruling of the court was canceled, as it was decided outside the deliberation room and at a later date” // ATP Consultant Plus.

4. Decree of the Plenum of the Supreme Court of the Russian Federation of 20.01.2003 No. 2 “On some issues that have arisen in connection with the adoption and entry into force of the Civil Procedure Code of the Russian Federation” (as amended on 10.02.2009) // “ Russian newspaper”, No. 15, 25.01.2003.

5. Decree of the Plenum of the Supreme Court of the Russian Federation of November 5, 1998 No. 15 “On the application of legislation by the courts when considering cases of divorce” (as amended on February 6, 2007) // Rossiyskaya Gazeta, No. 219, 11/18/1998.

6. Decree of the Plenum of the Supreme Court of the Russian Federation of September 17, 1975 No. 5 “On the observance by the courts of the Russian Federation of procedural legislation in the trial of criminal cases” (as amended on February 6, 2007) // “Collection of Resolutions of the Plenum of the Supreme Court of the Russian Federation 1961 - 1993”, M ., "Legal Literature", 1994.

Monographs and textbooks:

1. Bezrukov A.M. Prejudicial connection of judicial acts. M.: Wolters Kluver, 2007. S. 144.

2. Vitushkin V.A. Definitions of the Constitutional Court of the Russian Federation: features of a legal nature. M.: NORMA, 2005. S. 144.

3. Vlasov A. A. Civil process. M.: Yurayt, 2011. S. 560.

4. Civil process: Textbook / E.A. Borisova, S.A. Ivanova, E.V. Kudryavtseva and others; ed. M.K. Treushnikov. M.: Gorodets, 2010. S. 784.

5. Civil process. Textbook / Abramov S.N., Chapursky V.P., Shkundin Z.I.; Under total Ed.: Abramova S.N. M.: Yurid. Publishing House of the USSR Ministry of Justice, 1948. S. 483.

6. Civil process / Edited by VV Yarkov. M.: Wolters Kluver, 2009. S. 784.

7. Civil process: Textbook / D.B. Abushenko, V.P. Volozhanin, S.K. Zagainova and others; ed. V.V. Yarkov. M.: Wolters Kluver, 2004. S. 720.

8. Civil procedural law of Russia / Ed. M.S. Shakarian. M.: Norma, 2008. S. 510.

9. Zagainova S.K. Theoretical problems of the characteristics of judicial acts in civil and arbitration proceedings // Problematic issues of civil and arbitration processes / Ed. L.F. Lesnitskaya, M.A. Rozhkova. M.: Statut, 2008. S. 334 - 355.

10. Korshunov N. M., Mareev Yu. L. Civil process. M.: Norma, 2009. S. 912.

11. The course of civil proceedings. T. 1 / Malyshev K. S.-Pb.: Type. MM. Stasyulevich, 1876. S. 454.

12. Lebedev M. Yu. Civil process. M.: Yurayt, 2011. S. 400.

13. Determinations of the arbitration court. The practice of adoption and revision / Kallistratova R.V., Patsatsiya M.Sh., Prikhodko I.A.; Rep. Ed.: Kallistratova R.F.; Foreword: Arifulina A.A. M., 2003. S. 308.

14. Article-by-article commentary on the Civil procedural code Russian Federation / P.V. Krasheninnikov, I.E. Manylov, I.V. Reshetnikova and others; ed. P.V. Krasheninnikov. 3rd ed., rev. and additional M.: Statut, 2006. S. 876.

15. Ryzhakov A.P. Commentary on the Civil Procedure Code of the Russian Federation (item-by-article). 4th ed., revised. and additional // SPS ConsultantPlus. 2008.

16. Russian civil proceedings: Claims proceedings. Practical guide for students and aspiring lawyers. T. 1 / Comp.: Isachenko V.L. Minsk: Tipo-lithograph. B.I. Solomonova, 1901. S. 582.

17. Soviet civil process. Textbook / Yudelson K.S. M.: Gosjurizdat, 1956. S. 439.

18. Soviet civil procedural law. Tutorial/ Axelrod S.S., Gurvich M.A., Dobrovolsky A.A., Kurylev S.V., and others; Ed.: Gurvich M.A. M.: VUZI Publishing House, 1957. S. 370.

19. Judgment / Avdyukov M.G. M.: Gosyurizdat, 1959. S. 192.

20. Judgment in a civil case / Zeyder N.B. M.: Yurid. lit., 1966. S. 192.

21. Treushnikov M. K. Civil process. Theory and practice. M.: Gorodets, 2008. S. 352.

22. Textbook of civil procedure / Vaskovsky E.V.; Under the editorship, with a preface: Tomsinov V.A. M.: Zertsalo, 2003. S. 464.

23. Chechot D.M. Selected works on civil procedure. St. Petersburg: Ed. House of St. Petersburg University, 2005. S. 616.

Periodicals:

1. Marants Yu.V. Definition as judicial act. Questions of theory and law enforcement // Law. 2007. No. 11.

2. Semikin D.S. Judicial acts: concept, types, systemic connections // Vestnik SGAP. 2007. No. 4.

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§8. trial court ruling

Definition - a court decision, which formalizes and consolidates the action of a judge or court in the course of a civil trial (Article 223 of the Code of Civil Procedure). By definitions, the court (judges) resolves issues arising in connection with and in connection with the trial of a civil case on the merits.

Definitions - the essence of the acts of application by the court of law to individual specific relations that develop in the process of judicial activity.

The definitions issued by the court of first instance are very diverse in content.

Some of them draw up the actions of the persons participating in the case in exercising procedural rights and fulfilling obligations, as they contain answers to petitions for challenges (Articles 17.21 of the Code of Civil Procedure), on the inclusion of written evidence (Article 69 of the Code of Civil Procedure), on appointment of an expert examination (Article 74 of the Code of Civil Procedure), on calling witnesses, on securing evidence (Article 58 of the Code of Civil Procedure); others draw up the actions of the court (judge) - refusal to accept an application (Article 129 of the Code of Civil Procedure), suspension of proceedings (Article 214 of the Code of Civil Procedure), as well as the admission of certain persons to participate in the process (Articles 34, 37 of the Code of Civil Procedure) .

According to the nature of the procedural impact on the course of legal proceedings, the definitions can be divided into two groups: preparatory and preclusive, which block the further movement of the case.

The first group of definitions is characterized by the fact that it resolves individual procedural issues in the course of the proceedings, formalizes the actions of the court and the persons participating in the process. They do not change the course of the process. Such, for example, are the definitions on securing a claim, demanding evidence, deferment and installment plan for the execution of decisions.

Definitions of the second group - suppressive - are issued in cases established by the law itself: rulings on refusal to accept a statement of claim (Article 129 of the Code of Civil Procedure), on suspension of proceedings on the case (Articles 214, 215 of the Code of Civil Procedure), on leaving the application without consideration ( article 221 of the Code of Civil Procedure), on the termination of proceedings in the case (article 219, Code of Civil Procedure).

These definitions temporarily or permanently block the further movement of the case, which is why they are called suppressive. The rulings on the termination of proceedings on the case ends trial and hence they are sometimes referred to in the literature as concluding definitions.

An independent group of definitions is made up of the so-called special or private - they carry reporting information and are sometimes called signaling. With the help of private definitions, the court does not resolve issues related to the merits of the case.

Private rulings of the court. If cases of violation of the law are revealed at the court session, the court has the right (may) issue a special ruling and send it to the relevant organizations or officials who are obliged to report on the measures they have taken within a month. Art. 225 of the Code of Civil Procedure, regulating the possibility and procedure for issuing private definitions, does not establish liability for failure to take measures for a private definition, therefore, at present, the effectiveness of private definitions is extremely low. It would be necessary to provide in the Code of Civil Procedure that officials guilty of failure to take measures prescribed by the court may be fined, but the imposition of a fine does not relieve the relevant persons from the obligation to take measures taken by private determination.

In addition, by a private ruling, the court informs the prosecutor if, during the consideration of cases, he discovers signs of a criminal offense in the actions of a party or other participants in the process.

The issuance of private rulings is one of the forms of the educational impact of the court on citizens in the struggle to strengthen the rule of law and prevent offenses.

Particular definitions are announced at the court session after the court decision. Content definitions must be specific in order to be enforceable.

The procedure for issuing definitions. Determinations may be issued by the judge and the court at any stage of the civil process. Their content is stated either in the form of a separate procedural document, or entered into the minutes of the court session. The judge, acting on behalf of the court, may issue rulings alone in the cases provided for by the Code of Civil Procedure. The rest of the rulings are made by the court in the deliberation room.

In the deliberation room, those definitions are adopted for which such a procedure is provided directly by the articles of the Code. For example, the issue of disqualification of judges is decided by the court in a deliberation room, as well as rulings on any other issue, if, at the discretion of the court, it should be decided after the deliberation.

Definitions are decided in the deliberation room in compliance with the conditions adopted for making a decision according to the rules of Art. 23, 16 Code of Civil Procedure. These definitions are set out in a separate procedural document and signed by the entire court.

Most of the rulings during the court session (except for the listed cases) are issued by the court, conferring on the spot.

Part 3 Art. 203 of the Code of Civil Procedure gives the court the right, when resolving simple issues, to issue a ruling immediately after the meeting on the spot, without leaving the deliberation room.

From the text of this article, it should be concluded that all complex issues and issues for the consideration of which a mandatory preliminary meeting of judges is established are resolved in the deliberation room. The degree of complexity of the issue depends on the circumstances of the case and the discretion of the judges.

The rulings made in the deliberation room are set out in a separate procedural document and signed by the entire composition of the court. Each of the judges has the right to a dissenting opinion. Definitions are announced immediately after they are issued. They must contain a complete and substantiated answer to the question being resolved. Each determination that satisfies the petition of the persons participating in the process, or refuses to satisfy, must be motivated and have the details listed in Art. 224 Code of Civil Procedure.

In the ruling issued by the court in the deliberation room, the following shall be indicated:

a) the time and place of the ruling, i.e. the exact date of its announcement in the court session, and the place of the court session;

b) the exact and full name of the court, data on the composition of the court and the secretary of the court;

c) the persons participating in the case and the subject of the dispute;

d) the issue on which the ruling is made. For example, the issue of claiming or attaching new evidence, the termination of proceedings in a case due to lack of jurisdiction, etc.;

e) analysis of the opinions of the persons participating in the case, the reasonable opinion of the court on the issue being resolved, reference to the law, which the court was guided by;

f) a brief judgment of the court on the merits of the issue, as well as the procedure and time limit for appealing the ruling (Article 315 of the Code of Civil Procedure).

The descriptive part of the definition begins with the words “established” and “found”, in which the court must briefly, but fully and clearly state the essence of the issue and the results of its consideration.

The logical continuation of the descriptive part is the motivation part, which contains a link to the article of the law. The reasoning of the ruling makes it possible to check the course of formation of the judicial conviction, to understand what the court revealed and ruled and why it did it, i.e. analysis of the facts established by the court in the manner and with the help of evidence established by law, allows the higher court to verify the legality and validity of the determination with the help of a cassation check or review in the order of judicial supervision.

The operative part of the ruling contains the final conclusion of the court on the issue under consideration, the term and procedure for the execution of the ruling, as well as an indication of the possibility or impossibility of appealing.

The rulings that end the proceedings enter into force and have all the qualities that make up the latter. For example, the definition of termination of proceedings for the amicable agreement:

a) has exclusivity, so the parties cannot conclude a settlement agreement twice, if the settlement agreement is approved by the court, then again between the same parties, on the same subject, on the same grounds, the dispute is not considered by the court;

b) they have the property of irrefutability. The court that made the decision cannot change or cancel it. The higher court cannot revise and cancel the ruling if it has entered into force;

c) they have the property of being bound, since those not performed voluntarily are subject to compulsory execution (Article 338 of the Code of Civil Procedure).

Acquiring Properties legal force, the definitions do not lose their basic quality. They resolve individual issues (material and procedural), and not a dispute on the merits.