Types of judicial acts in civil proceedings

Types of judicial acts in civil proceedings.

When resolving disputes, a particularly important role is played by the legal forms of proceedings and the types of judicial acts that conclude these proceedings in the courts of first instance. Russian legislation provides for various forms of dispute resolution, which in practice are used with varying intensity. Anyway social, legal, political significance of judicial acts, completing the process goes far beyond the simple resolution of disputes between individual entities Therefore, the procedural form of resolving the case is important.

The most common form in Russian civil proceedings is procedural form. Due to the adversarial principle, the parties are always active in the process. Competitiveness in civil proceedings is manifested primarily through the implementation of the rule of evidence, according to which each person participating in the case must prove the circumstances to which he refers as the basis for his claims and objections. The adversarial process ends with a court decision.

Court decisions how acts of the judiciary contain factual and legal motives regarding controversial legal relations.

“A court decision in a civil case is a court decision that confirms the presence or absence of a controversial right, a controversial legal relationship, as a result of which it turns from controversial into indisputable, subject to necessary cases compulsory execution." 1

Paragraph one of Art. 198 of the Code of Civil Procedure of the Russian Federation establishes: “The court decision consists of introductory, descriptive, motivational and operative parts.” Thus, the law quite clearly defined the structure of the court decision.

The essence court decision can be better understood by understanding that through it the court turns controversial substantive legal relations into indisputable ones and prescribes to the subjects of these relations the optimal variant of individual behavior in accordance with the legal relations established by it, which is binding.

Besides common features Distinguishing an act of the judiciary, a judicial decision has the following properties:

1) the decision completes the activities of the court on the merits of the civil dispute being resolved and the establishment of legal facts, eliminating uncertainty in the relations of the parties;

2) the decision can be made by a person or body endowed by the state with the right to administer justice; a court decision cannot be made outside the framework of the process;

3) a decision is made on behalf of the state; the decision is subject to mandatory execution after entering into legal force.

That's how it is short description classical, or traditional, judicial decision, which is the result of a full adversarial process.

Non-traditional decisions made as a result of a “truncated” civil process include: default judgment.

Absentee decision, although it contains the conclusions of the court of first instance on the controversial legal relationship, it has specifics, which makes it different from the traditional decision. It can be classified as an exceptional type of court decisions. The difference lies in the very name of this act. It is this that carries the meaning that determines the procedural form of achieving the final results. The law established the possibility of considering a case and making a decision in the absence of the defendant, who was duly notified of the time court session. In absentee proceedings, the procedural fact of the defendant’s failure to appear at the court hearing plays a decisive role, since in the process of making a decision in absentia in the absence of the defendant, the court relies only on the explanations of one party.

A peculiar act judiciary, issued by the court in order to conduct writ proceedings, which is a documentary consideration of the claim made by the creditor (applicant).

Court order does not have such a thoroughly regulated, adversarial procedural form of dispute resolution, which can, for example, be traced in lawsuit proceedings. At the same time, the law establishes a list of requirements for which a court order is issued (Article 122 of the Code of Civil Procedure of the Russian Federation).

As is clear from Art. 121 of the Code of Civil Procedure of the Russian Federation, a court order is a court decision issued by a single judge on the basis of an application for the collection of sums of money or for the recovery of movable property from the debtor according to the requirements provided for in Art. 122 Code of Civil Procedure of the Russian Federation. A court order is at the same time an executive document and is executed in the manner established for the execution of court decisions.

The initiator of the case for issuing a court order is the creditor. His representative, legal successor, or prosecutor may act in his interests.

The list of requirements for which a court order is issued is exhaustive. It is contained in Art. 122 Code of Civil Procedure of the Russian Federation. A court order is issued if:

1. the claim is based on a notarized transaction;

2. the claim is based on a transaction completed in a simple writing;

3. the claim is based on a protest of the bill of exchange made by the notary, non-payment, non-acceptance and undated acceptance;

4. a claim has been made for the collection of alimony for minor children, not related to establishing paternity, challenging paternity (maternity) or the need to involve other interested parties;

5. a demand has been made to collect from citizens arrears of taxes, fees and other obligatory payments;

6. a claim has been made for the recovery of accrued but unpaid wages to the employee;

7. declared by the internal affairs body, a demand for the recovery of expenses incurred in connection with the search for the defendant, or the debtor, or a child taken from the debtor by a court decision.

The court order consists of introductory and operative parts; the order does not contain a motivational part. A court order is issued by a judge on the merits of the stated claim alone within five days from the date of receipt of the application for a court order to the court.

To obtain a court order, the creditor must submit an application for a court order and documents that indisputably confirm the obligation of the person who does not comply with the requirements stated by the person who submitted the application with the attachment of indisputable documents.

IN civil process There is another category of acts of the judiciary - this is the determination of the court. Judicial determination –court order courts of first instance, which do not resolve the case on its merits. Court rulings are made in the deliberation room in the manner prescribed by part one of Article 15 of the Code of Civil Procedure of the Russian Federation.

When resolving simple issues, the court or judge can make rulings without retiring to the deliberation room. Such determinations are recorded in the minutes of the court session.

Court rulings are announced immediately after they are issued (Article 224 of the Code of Civil Procedure of the Russian Federation). They facilitate the administration of justice in a particular case and serve to consider various procedural issues that arise in the course of resolving the dispute on the merits.

By means of rulings, the court gives a response to a particular petition of the parties, third parties, the prosecutor, or takes, on its own initiative, actions aimed at the emergence, development or termination of the process.

There are characteristic differences between court decisions and definitions.

1. A court decision is the only act of the court that provides an answer on the merits of the case under consideration.

The ruling does not provide an answer on the merits of the case under consideration and its content is the resolution of various issues that arose before the court when considering the case.

2. A court decision is an act of the court that always ends the consideration of the case on the merits in the court of first instance.

Judicial determination, as a rule, does not end the proceedings in the court of first instance and resolves individual issues that arose before the court during the trial.

3. A court decision is the procedural document towards which all proceedings in the case in the court of first instance are aimed.

Several determinations may be made for each individual case.

A ruling is made both at the request of the parties and at the initiative of the court.

Particular definition according to current procedural law, it should be considered as an act of applying the norms of procedural law to a certain group of social phenomena that are negative in nature. 1

According to Article 226 of the Code of Civil Procedure of the Russian Federation, private rulings are made on issues that are outside the scope of the civil dispute under consideration in a specific case.

Having discovered violations of the law during the consideration of a civil case, the court has the right to issue a ruling, which is sent to the relevant organizations and officials for taking measures. An organization or official is required to report to the court about the measures taken by them according to a private determination within a month.

The power of the arbitration court to consider and resolve disputes is expressed in the form of various judicial acts of the arbitration court.

The courts, acting as courts of first instance, can make decisions and determinations. Courts reviewing cases on appeal and cassation, as well as by way of supervision, issue decisions. The most important act of the court of first instance is the decision.

Arbitration court decision adopted as a result of resolving an economic dispute and considering other cases within its competence by the Constitution of the Russian Federation, the Federal Constitutional Law “On Arbitration Courts in the Russian Federation” (APK RF), and other federal laws. The decision of the arbitration court is made in compliance with the principle of adversarial law and equality of the parties.

The decision of the arbitration court is a decision of the court of first instance, which resolves the substantive legal claim of the plaintiff against the defendant on the merits, is an act of protection of the violated or disputed rights and legally protected interests of the parties to the arbitration process.

The decision of the arbitration court in a specific case is, first of all, judicial act, which authoritatively confirms the presence or absence of a controversial legal relationship, its specific content, and, thus, the controversial legal relationship turns into an indisputable one, subject to enforcement.

The decision of the arbitration court must consist of four parts - introductory, descriptive, motivational and substantive.

The introductory part of the arbitration court decision begins with the announcement of the decision in the name of Russian Federation. The following contains an indication of the name of the arbitration court that made the decision; the composition of the court and the name of the person who kept the minutes of the court session are reported; case number, date and place of decision; subject of dispute; the names of the persons participating in the case, the names of the persons present at the court hearing, indicating their powers.

The descriptive part of the court decision must contain a brief summary of the plaintiff's claims, as well as the content of the defendant's objections, explanations, statements and petitions of other persons participating in the case; information about the actions performed by the judge of the arbitration court, for example, inspection of material evidence, access to their location.

The motivational part contains the circumstantial motivation for the decision, both from the factual and legal sides.

The operative part of the decision of the arbitration court must contain conclusions about satisfaction or refusal to satisfy in whole or in part each of the stated claims, an indication of the distribution of legal costs between the parties, the period and procedure for appealing the decision (clause 5 of Article 170 of the Arbitration Procedure Code of the Russian Federation).

In cases where the parties' dispute is not resolved on its merits, the arbitration court of first instance issues a ruling.

Arbitration court rulings resolve certain issues that arise during the consideration of a dispute, for example, suspension, leaving a claim without consideration, termination (Article 140 of the Arbitration Procedure Code of the Russian Federation, clause 2 of Article 184 of the Arbitration Procedure Code of the Russian Federation).

During the administration of justice civil cases many different but interconnected actions are performed, which are reflected and expressed in procedural documents, incl. judicial acts.
It should also be noted that procedural documents have the following specific features:

• are made only in writing;
• always contain expressions of will or messages from the court, persons participating in the case, or other participants in the process;
• are compiled on the basis and, in accordance with the rules of law, their form and content are clearly regulated by law;
• specifically designed for registration and certification of procedural actions;
• are legal facts (specific), their inclusion in legal proceedings entails legal consequences.

A judicial act is an act drawn up by the court in accordance with the requirements of the civil procedural law and aimed at resolving a civil case on the merits or resolving issues arising in the course of judicial proceedings.
The current legislation distinguishes three types of judicial acts:
1) court decision;
2) judicial determination;
3) court order.

A court order is issued exclusively when considering a case in writ proceedings. In its essence, it is similar to a judicial decision, since it is an act of the judiciary that resolves the case on its merits.
At the same time, the main judicial acts remain the court decision and court ruling.
A judicial decision is an act by which a civil case is resolved on its merits. A judicial ruling is a court ruling made when resolving issues that arise in the course of legal proceedings.
The features that unite these judicial acts are:

• they come from the court - a body endowed by the state with the authority to consider and resolve a civil case;
• they are acts of application of law, since they have an individual character, a specific addressee;
• the civil procedural law establishes their form and content;
• These acts are issued in accordance with the procedure established by law.

To understand the procedural nature of court decisions
As a type of court ruling, it is necessary to identify the features that distinguish it from another type of judicial ruling - judicial rulings.

The following provisions characterize the judicial decision.
1. A court decision is a judicial act that is aimed at resolving the case on the merits. The court's decision contains an answer on the merits of the stated substantive legal requirements, a judgment on the very content of the dispute considered between the parties in the lawsuit or filed applications in cases arising from public law relations and special proceedings. It is aimed directly at protecting the subjective rights and legally protected interests of the parties to civil proceedings.
Judicial rulings made on individual, private issues of the case do not provide an answer on the merits of the case being examined. These rulings of the court of first instance have as their content the resolution of various individual issues of a procedural nature raised before the court when considering the case, i.e. issues that determine the movement, development of the process (for example, issues of attracting participants in the process, suspending proceedings in the case, adjourning judicial trial, challenge of judges, etc.).
2. A court decision is always made on behalf of the state - the Russian Federation (Part 1 of Article 194 of the Code of Civil Procedure of the Russian Federation), a court ruling is made on behalf of the court.
3. A court decision is made in the course of resolving a civil case only once, since it is a decree that ends the proceedings in the court of first instance, an act towards which all proceedings in the case, all procedural actions of the court, the parties and others are ultimately directed participants in the case.
A court ruling, as a rule, does not end the proceedings in the court of first instance. It only resolves issues that arose before the court during the implementation of procedural actions ensuring the consideration of the case and the execution of the court decision. By virtue of for this purpose For each case, many determinations can be made, quantitative composition which depends on the number of procedural issues being considered. Thus, by the time the case is tried, the judge makes at least two or three rulings on initiating proceedings in the case, preparing the case for trial, and scheduling the case for hearing.
4. A judicial decision is made only in the deliberation room (Part 2 of Article 194 of the Code of Civil Procedure of the Russian Federation), but a judicial decision can be made by the court both in the deliberation room and in the courtroom without retiring to the appropriate room, in particular on issues not causing difficulties in resolving them (part 1.2 of article 224 of the Code of Civil Procedure of the Russian Federation).
5. When drawing up a decision, the rules of both substantive and procedural law are used. This sign due to the fact that the final conclusion on the matter is realized in the court decision controversial issue, requiring application legal norms both types. The judicial determination is based only on the norms of procedural law, since the said act resolves exclusively issues of a procedural nature.
6. The decision is always drawn up in the form of a separate independent document (Article 197 of the Code of Civil Procedure of the Russian Federation), the determination can be either a separate document or recorded in the protocol (Article 225 of the Code of Civil Procedure of the Russian Federation).
7. The decision of the court of first instance can always be appealed, while not all rulings can be appealed separately from court decisions (Article 371 of the Code of Civil Procedure of the Russian Federation).
The civil procedural law does not contain a clear concept of a court decision. However, based on the above provisions, we can give the following definition of the concept of a court decision: it is an endowed legal force procedural act, a document containing a state-authoritative, individually specific instruction on the application of the rules of law to the facts and legal relations established in court proceedings.

1. The concept of a decision of the court of first instance
2. Types of decisions of the court of first instance

1. The concept of a court decision of first instance

Judicial activity to consider the case on the merits, being law enforcement, is accompanied by the issuance of acts that have received the general name “decisions of the court of first instance.” At the same time, not only courts, but also magistrates act as courts of first instance. For this reason, the term “court of first instance” combines the activities of considering civil cases on the merits federal courts general jurisdiction and judges of general jurisdiction of the constituent entities of the Russian Federation, who are magistrates. Consequently, the rulings of the trial court also cover acts issued by federal courts of general jurisdiction and magistrate judges when considering civil cases on the merits. Undoubtedly, the introduction of the institution of magistrates introduced a certain convention into the term “ruling of the court of first instance”.
The decisions of the court of first instance have features that characterize their essence.
Firstly, the decisions of the court of first instance are made by the court, i.e. a body authorized by the state to administer justice, which determines the state-authoritative nature of the acts adopted. As is known, the legislation defines a system of judicial bodies authorized to administer justice. No other body can administer justice in the Russian Federation. This provision is reflected in the principle of the administration of justice only by the court.
Secondly, the decisions of the court of first instance are in the nature of law enforcement acts, therefore, they are made on the basis current legislation. The decision of the court of first instance is made in the procedural form provided for by civil procedural legislation. Due to the above, the decisions of the courts of first instance are procedural in nature.
Thirdly, the court issues law enforcement acts that are addressed to specific individuals and relate to specific facts, therefore the decisions of the court of first instance have the character of an individual specific act. As is known, judicial bodies are not authorized to adopt rules of law; all judicial acts relate to specific cases, as a result of which the facts of a given case are established and questions regarding specific participants in the case are resolved.
Fourthly, all decisions of the court of first instance must be formalized in writing. Depending on the type of decision of the court of first instance, their written form may differ (the decision is in the form of a separate document or in the form of an entry in the minutes of the court session).
Fifthly, decisions of the court of first instance are acts of a mandatory nature. The binding nature of the decisions of the court of first instance applies both to those against whom the act was issued and to all other persons.
Based on the foregoing, it is possible to formulate a definition of the decision of the court of first instance.
A decision of the court of first instance is an individually specific procedural act adopted by a court of general jurisdiction on the basis of current legislation as a result of the administration of justice in civil cases in written form, which is of a state-authoritative and binding nature.

2. Types of decisions of the court of first instance

IN educational literature traditionally there are two types of decisions of the court of first instance: decision and determination. At the same time, the legislation also distinguishes between a court order issued by the court of first instance and a decision on involuntary hospitalization of a citizen. However, the Code of Civil Procedure of 2002 made changes, classifying the decision and ruling of the court, as well as the court order (Part 1 of Article 13 of the Code of Civil Procedure) as judicial decisions.
The decision of the court of first instance is a resolution of the court of first instance, which resolves the case on its merits (Part 1 of Article 194 of the Code of Civil Procedure). As a general rule, consideration of a case on its merits ends with a court decision. In this regard, the court decision ends the proceedings in the court of first instance and eliminates the dispute existing between the parties.
Since 1995, when changes and additions to the Civil Procedure Code were made, in addition to the decision, it is possible to issue a decision in absentia. A default judgment can be considered as a type of court decision that is made on general rules civil proceedings, but with some exceptions established in the Civil Procedure Code. The main difference between a default judgment and a court decision is the absentee proceedings, preceding the issuance of a default judgment. Absentee proceedings are characterized by the absence of the defendant in the proceedings of the case, the limitation of the plaintiff in administrative actions (he does not have the right to change the subject, basis of the claim, or increase the amount of claims), which is reflected in the content of the absentee decision.
The ruling of the court of first instance is a decision of the court of first instance or a judge who does not resolve the case on the merits (Part 1 of Article 224 of the Code of Civil Procedure). The ruling resolves procedural issues arising in the various stages civil proceedings: a ruling on the preparation of a case, a ruling on a letter of request, a ruling on suspending proceedings in a case, a ruling on postponing the trial of a case, etc. As a rule, a ruling does not end the trial, with the exception of issuing a ruling to terminate the proceedings and a ruling to leave the application without consideration. Both cases of issuing a ruling take place at the end of the trial, but without making a judicial decision, since in these cases the process ends without resolving the case on the merits, therefore, there are no grounds for making a judicial decision.
A court order is a decision of a trial judge issued on an application for the recovery of sums of money or for the recovery of movable property from the debtor according to the requirements specified in the Civil Procedure Code (Part 1 of Article 121 of the Code of Civil Procedure). On the one hand, a court order is close in essence to a court decision, because in both cases the existing dispute is eliminated. After a court decision and a court order are issued, their forced execution is possible. However, on the other hand, there are serious differences between these acts. The issuance of a court order is not preceded by a consideration of the case on its merits; the judge issues an order based on the study of written documents. For this reason, writ proceedings are called “indisputable”. The content of the court order also differs from the content of the decision (for more details, see Chapter XV).
Before the entry into force of the Civil Procedure Code, among the court decisions there was a decision on compulsory hospitalization of a citizen - a decision made by a judge of the court of first instance in the presence of grounds specified in the law. The Law of the Russian Federation “On psychiatric care and guarantees of the rights of citizens during its provision” authorized the judge to make a decision on the involuntary hospitalization of a citizen. In this case, the court order is a form of authorization of certain compulsory actions.
According to the Law of the Russian Federation “On psychiatric care and guarantees of the rights of citizens during its provision,” judicial authorization is required:
- for forced examination without the consent of the person or his legal representative;
- for compulsory hospitalization of a person in a psychiatric hospital;
- to extend a person’s hospitalization in a psychiatric hospital.
The introduction of judicial authorization in these cases increases the guarantee of citizens' rights and their protection. However, modern civil procedural legislation has clarified the matter by calling a judicial act on forced hospitalization a decision.
Despite all the diversity, all decisions of the court of first instance are characterized by the features listed in this paragraph.

Absentee proceedings.

Absentee proceedings can be briefly defined as the trial and resolution of a civil case according to a simplified version of the procedural rules with the consent of the plaintiff and in the absence of the defendant, who was duly notified of the time and place of the court hearing, who did not report valid reasons for failure to appear and did not ask for the case to be considered in his absence.

The simplified version boils down only to the consequences of the defendant’s failure to appear at the hearing and the restrictions that are established for the plaintiff. The Code of Civil Procedure of the Russian Federation does not provide for any other exceptions from the usual scheme for considering a case.

There is the following definition: “ proceedings in absentia- this is a procedure for considering and resolving a civil dispute on the merits, allowed with the consent of the plaintiff, based on the study of the plaintiff’s oral explanations and other means of proof provided for by law and carried out without the participation of someone who has been duly notified of the time and place of the court hearing and has not asked for consideration of the case in his absence as a defendant who has the right to seek summary reversal of the decision.”

Absentee proceedings can be briefly defined as the trial and resolution of a civil case according to a simplified version of the procedural rules with the consent of the plaintiff and in the absence of the defendant, who was duly notified of the time and place of the court hearing, who did not report valid reasons for failure to appear and did not ask for the case to be considered in his absence. .

The simplified version boils down only to the consequences of the defendant’s failure to appear at the hearing and the restrictions that are established for the plaintiff. The Code of Civil Procedure of the Russian Federation does not provide for any other exceptions from the usual scheme for considering a case.

I.I. Chernykh gives the following definition: “absentee proceedings are a procedure for considering and resolving a civil dispute on the merits, permitted with the consent of the plaintiff, based on the study of the plaintiff’s oral explanations and other means of proof provided for by law and carried out without the participation of someone duly notified of the time and place of the trial. meeting and the defendant who did not request consideration of the case in his absence, who has the right to demand the cancellation of the decision in a simplified manner.”

Another example: “...absentee proceedings are the procedure established by law for holding a court hearing and making a decision on a claim in the absence of the defendant.”

Absentee proceedings are possible only when considering and resolving cases arising from civil legal relations, i.e. being considered in the lawsuit.

In cases arising from public legal relations, the rules of absentee proceedings do not apply (Article 246 of the Code of Civil Procedure of the Russian Federation).

Conditions and procedure for absentee proceedings

For the occurrence of proceedings in absentia and its completion by a decision in absentia, certain conditions must be present.

Article 233 of the Code of Civil Procedure of the Russian Federation establishes the grounds for proceedings in absentia (essential conditions):

1) failure of the defendant (all defendants) to appear at the court hearing:

notified of the time and place of the court hearing;

who failed to report valid reasons for absence;

who did not ask for the case to be considered in his absence;

2) the consent of the plaintiff to consider the case in absentia proceedings in the absence of the defendant.

A default judgment will not be made in the following cases:

when the plaintiff changes the subject or basis of the claim, or increases the size of the claim (Article 233 of the Code of Civil Procedure of the Russian Federation);

the defendant’s failure to appear is due to valid reasons of which the court has been notified;

the defendant asked to consider the case in his absence;

the parties who did not apply for the case to be heard without them did not appear without good reason for a second summons;

the defendant did not appear, but his representative was present.

If the plaintiff does not agree to have the case heard in absentia, the court postpones the proceedings and sends the defaulting defendant a notice of the time and place of a new court hearing (Part 3 of Article 233 of the Code of Civil Procedure of the Russian Federation). The plaintiff may object to a default judgment, and even an unmotivated disagreement is sufficient. This follows from the principle of discretion and is not subject to judicial intervention and control.

When considering a case in absentia, the court holds a hearing in general procedure, examines the evidence presented by the persons participating in the case, takes into account their arguments and makes a decision, which is called in absentia.

The default judgment must consist of four parts:

descriptive,

motivational and

resolutive.

The operative part of the default judgment has the following features: in addition to the court’s conclusions on the satisfaction of the claim or on the refusal to satisfy the claim in whole or in part, instructions on the distribution legal expenses, the term and procedure for appealing a court decision, must additionally contain the term and procedure for filing an application to cancel this court decision. This means that the final part of the default judgment in accordance with Art. 237 of the Code of Civil Procedure of the Russian Federation provides for two ways of appealing it for the defendant and one for the plaintiff. Parties should have clear information regarding the time limits for appeals and the courts to which they should appeal.

A court decision is always announced publicly. The plaintiff who participated in the proceedings usually awaits the announcement of the decision as a whole or its operative part in the courtroom and can then receive a copy in the usual manner. A copy of such a decision must be sent to the defendant no later than three days from the date of its adoption in final form with acknowledgment of delivery. The procedure is similar in cases where the plaintiff asked to consider the dispute in in absentia in his absence.

Appeal against a default judgment

According to Art. 237 of the Code of Civil Procedure of the Russian Federation, the defendant has the right to submit to the court that made the decision in absentia an application to cancel this court decision within 7 days from the date of delivery of a copy of this decision to him.

A court decision in absentia may also be appealed by the parties in appeal procedure within a month after the expiration of the deadline for the defendant to file an application to cancel this court decision, and if such an application is filed, within a month from the date of the court’s ruling refusing to satisfy this application.

Thus, the defendant has two ways to appeal a default judgment in absentia:

filing an application for its cancellation with the court hearing the case;

direction of the appeal.

Compared to the defendant, the plaintiff has only the second option available.

Article 238 of the Code of Civil Procedure of the Russian Federation establishes that an application to cancel a court decision in absentia must contain:

name of the court that made the decision in absentia;

name of the person submitting the application;

circumstances indicating valid reasons for the defendant’s failure to appear at the court hearing, which he was not able to promptly inform the court about, and evidence confirming these circumstances, as well as circumstances and evidence that may affect the content of the court’s decision;

request of the person submitting the application;

list of materials attached to the application.

An application to cancel a court decision in absentia is signed by the defendant or, if authorized, by his representative and submitted to the court with copies, the number of which corresponds to the number of persons participating in the case.

An application to cancel a court decision in absentia is not subject to payment of a state fee.

In ch. 22 of the Code of Civil Procedure of the Russian Federation does not provide for the consequences of a defendant’s failure to comply with the requirements for the content of an application for review of a decision in absentia. But by analogy with Art. 323 or 341 of the Code of Civil Procedure of the Russian Federation, this may entail leaving the application without progress with the appointment of a deadline for correcting the deficiencies.

After accepting an application to cancel a default judgment, the court is obliged to take a number of actions to facilitate a comprehensive and complete consideration of the case. Thus, the court notifies all persons participating in the case about the time and place of the hearing, sends them copies of the application to cancel the default judgment and the materials attached to it. This must be done so that the persons involved in the case can prepare for the consideration of the application, determine their position, organize the defense of their interests, and possibly submit a response to the complaint in advance.

According to Art. 240 of the Code of Civil Procedure of the Russian Federation, an application for revision must be considered within ten days from the date of its receipt.

The failure of persons notified of the time and place of consideration to appear does not prevent the consideration of the application. If any of the persons participating in the case or representatives who were not notified of the time and place of consideration of the application to cancel the default judgment fail to appear at the court hearing, the court must be guided by the general rules and postpone consideration of the application.

The court, having considered the application to cancel the court decision in absentia, makes a ruling:

about refusal to satisfy the application or

on the cancellation of a court decision in absentia and on the resumption of consideration of the case on the merits by the same or a different composition of judges.

Based on the foregoing, we can conclude that, in its essence, an absentee decision is no different from a decision made during the ordinary consideration of the case. Only the legal consequences of a particular decision are different, such as, for example, the procedure for their entry into legal force, the timing, methods and procedure for appealing; however, they do not affect the nature of a decision in absentia as an act of justice.

The Code of Civil Procedure of the Russian Federation contains Ch. 22 “Proceedings in Absentia”, which establishes the conditions, procedure for considering a case in absentia proceedings, as well as the content, methods and procedure for appealing a decision in absentia.

The institution of absentee proceedings was known to Russian civil procedure. Thus, in the Charter of Civil Procedure of 1864, the French model of default judgment was used. However, the Code of Civil Procedure of the RSFSR of 1923 did not accept this institution; in 1995, proceedings in absentia and judgment in absentia were reintroduced into the Russian civil process, and at the present stage it has been restored again in the current civil procedural legislation. This is due, first of all, to the fact that improvement trial follows the path of increasing efficiency and timeliness. Therefore, along with the general procedure, a simplified procedure for trial was established, namely proceedings in absentia, in which the case is considered in the absence of the defendant.

It should be noted that this institution does not violate the adversarial principle, since the parties are informed about each other’s position, the court hearing is held according to general rules, including the examination of all evidence, the defendant retains the right to appeal the decision made in absentia. IN modern conditions the institution of absentee judgment is aimed, on the one hand, at expanding judicial protection subjective rights of citizens and organizations, their freedom of discretion, and on the other hand, to suppress the possibility of the defendant’s abuse of subjective procedural rights and establishment adverse consequences for abusing them. The institution of absentee proceedings also acts as a guarantee of ensuring the rights of the defendant who did not appear at the court hearing for good reasons, which is expressed in the cancellation of the decision and the resumption of consideration of the case on the merits in accordance with Art. 237-243 Code of Civil Procedure of the Russian Federation, about what we'll talk Further.

A decision in absentia allows you to resolve a dispute when the defendant evades appearing in court, when he does not submit a petition to consider the case in his absence. In Part 1 of Art. 233 of the Code of Civil Procedure of the Russian Federation provides that in the event of a failure to appear at a court hearing by a defendant who has been notified of the time and place of the court hearing, who has not reported valid reasons for the failure to appear and has not asked for the case to be considered in his absence, the case may be considered in absentia proceedings. The court issues a ruling on the consideration of the case in this manner.

Only claims cases can be considered in absentia proceedings; when considering and resolving cases arising from public law relations (Part 2 of Article 246 of the Code of Civil Procedure of the Russian Federation), as well as in cases of special proceedings (Article 263 of the Code of Civil Procedure of the Russian Federation), the rules on absentee proceedings cannot be applied, since there is no dispute about right. Thus, the term proceedings in absentia refers to the proceedings of a case in a court of first instance, in a trial.

To proceed with a claim in absentia proceedings, the following grounds must be present:

1) failure of the defendant to appear at the court hearing;

A defendant may fail to appear in court for various reasons.

Thus, a default judgment will not be made if the defendant:

a) did not appear for reasons recognized by the court as valid, and the court was notified of the reasons for the failure to appear;

b) asked to consider the case without his participation;

c) did not appear without good reason for a second summons

That is, in addition to the fact of proper notification of the defendant, another condition must be his failure to appear.

2) duly notifying the defendant of the time and place of the court hearing;

The court must have reliable information about the proper notification of the defendant, and supporting documents must be attached to the case file.

So the case must contain evidence of service of the subpoena. The procedure for serving the summons is determined by Art. 116 Code of Civil Procedure of the Russian Federation. A judicial summons addressed to a citizen is handed over to him personally against a signature on the counterfoil of the summons, which must be returned to the court. A summons addressed to an organization is handed to the appropriate official, who signs for its receipt on the counterfoil of the summons. If the person delivering the summons does not find the citizen summoned to court at his place of residence, the summons is handed to one of the adult family members living with him with their consent for subsequent delivery to the addressee.

The law also allows the delivery of a summons by mail (Article 115 of the Code of Civil Procedure of the Russian Federation).

That is, the procedure for proper notification of the time and place of the court hearing, which is provided for in Chapter. 10 of the Code of Civil Procedure of the Russian Federation must be observed.

In accordance with Art. 114 of the Code of Civil Procedure of the Russian Federation, the content of the agenda must include:

1) name and address of the court;

2) indication of the time and place of the court hearing;

3) the name of the addressee - the person notified or summoned to court;

4) an indication as to whom the addressee is notified or called;

5) the name of the case for which the addressee is notified or summoned.

In court summonses or other court notices addressed to persons participating in the case, it is proposed to present to the court all the evidence they have in the case, and also indicates the consequences of failure to provide evidence and failure to appear in court of the notified or summoned persons, and explains the obligation to inform the court of the reasons for the failure to appear. Simultaneously with the summons or other judicial notice addressed to the defendant, the judge sends a copy statement of claim, and with a summons or other judicial notice addressed to the plaintiff - a copy of the defendant’s written explanations, if the explanations were received by the court.

3) absence of messages from the defendant about the presence of valid reasons for failure to appear at the court hearing;

4) absence of a request from the defendant to consider the case without his participation;

5) the absence of objections from the plaintiff to the consideration of the case in absentia proceedings.

Finding out the plaintiff’s consent to consider the case in absentia proceedings is a manifestation of the principle of discretion in civil proceedings. If the consent of the plaintiff to consider the case in absentia proceedings is revealed, the court should explain to him the consequences: the impossibility of changing the subject and basis of the claims, increasing the amount of claims, the possibility for the defendant not only cassation appeal decision in absentia, but also filing an application for its cancellation.

In accordance with Part 4 of Art. 233 of the Code of Civil Procedure of the Russian Federation, if the plaintiff changes the subject or basis of the claim or increases the amount of the claim, the court does not have the right to consider the case in absentia proceedings, but must postpone the hearing of the case. These actions of the plaintiff are permitted by law only with the participation of the other party to the process, namely the defendant, in the court hearing, in order to prevent violations of the interests of the opposite party.

Thus, the law establishes that only in the presence of all the listed grounds is it possible to carry out absentee proceedings.

If several defendants are involved in the case, a decision in absentia is not allowed if at least one defendant appears at the court hearing. Consideration of the case in absentia will be possible in the event of failure of all defendants to appear at the court hearing.

The absence of the plaintiff’s consent to consider the case in absentia entails the court’s obligation to postpone the hearing of the case (Part 3 of Article 233 of the Code of Civil Procedure of the Russian Federation). But part 4 of Art. 167 of the Code of Civil Procedure of the Russian Federation establishes the right of the court to consider the case in the event of the failure of any of the persons participating in the case and notified of the time and place of the court hearing. If they do not provide information about the reasons for their failure to appear or the court finds the reasons for their failure to appear disrespectful.

Thus, giving the concept of proceedings in absentia, we can agree that according to the current procedural legislation, proceedings in absentia recognize the procedure for considering and resolving a specific civil case in the event of the failure of the defendant to appear, duly notified of the time and place of the court hearing, not reporting valid reasons for the failure to appear and not asking for consideration of the case in his absence, unless the plaintiff objects to this, with a decision called in absentia.

Absentee proceedings- this is the consideration of a case by a court without the participation of the defendant who did not appear in court, although he was duly notified of the time and place of the trial.

As a result of absentee proceedings, a default judgment is issued.

In the legal literature, there is a point of view according to which the institution of a default judgment is a procedural and legal sanction applied to the defendant for his failure to comply with the standards of competition, which is expressed in consequences that are unfavorable from the point of view of the process.

Absentee decision represents an act of justice, and thus must meet the basic requirements for decisions, that is, it must be legal, justified, complete, definite and unconditional.

The structure and content of the default judgment are determined general requirements, provided for in Art. 198 Code of Civil Procedure of the Russian Federation.

A decision in absentia, just like a regular decision, consists of introductory, descriptive, motivational and operative parts. However, the content of a default judgment has some features that allow it to be distinguished from an ordinary decision. Thus, the name of the decision must contain the word “absentee”.

The descriptive and motivational parts of the default judgment are also specific, since they may not contain the defendant’s arguments and objections, etc. But a special difference is really characteristic of the operative part of a decision in absentia, which, in addition to indicating the general period and procedure for appealing, must contain an indication of the period and procedure for filing an application to cancel such a decision by the defendant (Article 237 of the Code of Civil Procedure of the Russian Federation, Article 239 of the Code of Civil Procedure of the Russian Federation)

In accordance with Art. 244 of the Code of Civil Procedure of the Russian Federation, a decision in absentia comes into force after the deadline for appealing it has expired (Article 237 of the Code of Civil Procedure of the Russian Federation). A decision in absentia comes into force after 17 days, since the usual 10 day time for appeal (Articles 321, 338 of the Code of Civil Procedure of the Russian Federation) in accordance with Art. 237 of the Code of Civil Procedure of the Russian Federation adds an additional 7 days, during which the defendant has the right to file an application to cancel the default judgment, as well as the time that has passed from the date of the decision to the day of delivery of its copy to the defendant. A decision in absentia also has all the properties of a decision that has entered into legal force, namely binding, irrefutable, exclusive, prejudicial enforceability.

According to Art. 237 of the Code of Civil Procedure of the Russian Federation, the parties can appeal a decision in absentia in cassation, and if it was made by a magistrate, then in an appeal within 10 days after the expiration of the 7-day period for the defendant to file an application to cancel the decision. If the defendant filed said statement to the court that made the decision in absentia, then an appeal to the cassation instance is possible within 10 days from the date of the decision to refuse the defendant’s application.

If the parties go to court cassation instance a decision in absentia, if it is not cancelled, comes into force from the moment the court issues a ruling (Article 367 of the Code of Civil Procedure of the Russian Federation).

Civil Procedure Code. The decision of the court of first instance is an individually specific procedural act that is adopted by a court of general jurisdiction on the basis of current legislation as a result of the administration of justice in civil cases in written form, which is of a state-authoritative nature and binding on everyone.

In the educational literature there are 2 types of decisions: decision and definition. However, the Code of Civil Procedure also distinguishes court orders and decisions of the presidium of the supervisory court.

1) The court's decision- This is a decision of the court of first instance, which concludes the case on the merits. It is issued in the name of the Russian Federation, which confirms its imperious character. With the issuance of a decision, the proceedings in the court of first instance are completed and the dispute existing between the parties is eliminated. The court decision is binding on everyone and is subject to mandatory execution and compliance. It is issued by the court at the end of the trial for all three types of legal proceedings: claim, special proceedings and proceedings arising from public legal relations. The decision must clearly state what exactly the court decided, who should take what specific actions and in whose favor.

2) Definitions- this is a decision of the court of first instance or a judge, which does not resolve the case on its merits. The ruling resolves a variety of individual procedural issues that arise at various stages of civil proceedings, for example, a ruling on the preparation of a case, a ruling on a letter of request, a ruling on suspending proceedings in a case, a ruling on postponing the trial of a case, etc.

The ruling does not end the trial, with the exception of issuing a ruling to terminate the proceedings and a ruling to leave the application without consideration. These two cases of issuing a ruling take place at the end of the trial, but without making a judicial decision, since in these cases the process ends without resolving the case on the merits, therefore, there are no grounds for making a judicial decision. Thus, the determination as a decision of the court of first instance does not affect the substance of the case under consideration.

3) Court order- a court ruling made by a single judge on the basis of an application for the collection of sums of money or for the recovery of movable property from the debtor according to the requirements provided for by the Code of Civil Procedure of the Russian Federation. Its issuance is not preceded by a consideration of the case on its merits; the judge issues an order based on examination of written documents.

APK. When considering and resolving disputes, the arbitration court performs various procedural actions on issues that arose during the arbitration process at its individual stages, and makes judgments on the merits of the dispute under consideration as a whole. The content of the court's activities is stated in writing, in the form procedural documents called judicial acts.

The arbitration court adopts judicial acts in the form of a decision, resolution, determination.

In relation to the activities of arbitration courts of first instance, the APC distinguishes two types of judicial acts: decision, determination.

Courts reviewing cases on appeal and cassation, as well as by way of supervision, issue: 1) decisions, 2) rulings.

The most important ruling of the trial court is solution. The significance of the arbitration court decision is that it is the main act of justice, issued after consideration and resolution of the case on the merits.

Arbitration court decision- this is an act of the court of first instance, by which the court, on the basis of facts reliably established during the trial, in strict accordance with the norms of procedural and substantive law, resolves the case on the merits, that is, satisfies the claim or application in whole or in part, or refuses to satisfy them.

Judicial act adopted arbitration court of the first instance when considering the case on the merits, is called a decision.

It is issued in the name of the Russian Federation, which confirms its imperious character. With the issuance of a decision, the proceedings in the court of first instance are completed and the dispute existing between the parties is eliminated. The court decision is binding on everyone and is subject to mandatory execution and compliance.

Definition - This is a judicial act by which the case is not resolved on the merits of the dispute. The ruling resolves a variety of individual procedural issues that arise at various stages of civil proceedings, for example, a ruling on the preparation of a case, a ruling on a letter of request, a ruling on suspending proceedings in a case, a ruling on postponing the trial of a case, etc.

The ruling does not end the trial, with the exception of issuing a ruling to terminate the proceedings and a ruling to leave the application without consideration. These two cases of determination take place at the end of the trial, but without a judicial decision.

The decisions, resolutions and determinations made by the arbitration court must be legal, justified and motivated.