The parts of the court hearing in civil proceedings are brief. Components of a court session

Parts of the trial

The preparatory court decides the issues of the trial of the case with a given composition of the court, the trial of the case with the appearance of the participants in the process, the consideration of the case by this court or adjournment (but adjournment may also follow other parts of the trial).

An exploratory study of the circumstances of the case.

Judicial debates and the prosecutor's conclusion, different parts

Decree and announcement of the decision

Preparatory part s/z.

Even before the court enters the courtroom, the court secretary must find out which of the

participants in the process appeared.

At the appointed time, the court composition enters the hall, the persons participating in the case are in the courtroom, which is always open during work

The presiding judge in the case opens the court session and announces which case is to be heard, for example, to be heard

civil case on the claim of Ivanov against Petrov for damages in connection with a collision of vehicles.

Then the attendance of the participants in the process is checked, the appearance must be

report to the secretary court session, but usually the presiding officer himself finds out who has appeared, the persons participating in the case present their documents (passports) and powers of attorney to the judge.

If a translator is involved in the case, it is explained to him

presiding duty and he is warned of criminal liability. If there are witnesses in the courtroom, then they are removed from the room so that they do not hear the testimony of the parties, they should not communicate with each other, therefore those who have already been interrogated are left in the courtroom, or with the permission of the court they can leave. Ideally, witnesses should be provided with accommodations to await being called into the courtroom. Witnesses can be removed from the courtroom, and after a participant in the process makes a motion to question a witness who has not yet been brought into the case as a witness, the court discusses this motion, almost always satisfies and removes the witness from the courtroom.

After this, the composition of the court is announced, the names of the judge are announced,

presiding judge, people's assessors, prosecutor,

a representative of the public, a labor collective (you feel how the Civil Procedure Code is outdated in relation to the last two), an expert, a translator, a court secretary. Sometimes a reserve attorney is involved in the case in case one of the assessors is unable to participate in the further consideration of the case, this happens very, very rarely, just in case of emergency, when the case is very voluminous, so as not to

start it again. Nowadays, courts are experiencing difficulties in forming and already approved list of people's assessors.

The presiding officer explains that the persons participating in the case

Parties. third parties, representatives of organizations, have the right to challenge anyone from the court.

recusal. Challenges are resolved by the court in the order in which they are filed by the participants in the process, from the plaintiff to third parties, first challenges to the panel of judges, then to the prosecutor, the secretary of the order

Article 154 of the Code of Civil Procedure.

The grounds for challenges are common to all - Article 17 of the Code of Civil Procedure: “Judge, people’s assessor, prosecutor, secretary, expert and

translators cannot participate in the consideration of the case and are subject to recusal if they are personally, directly or indirectly, interested in the outcome of the case or there are other circumstances that cast doubt on their

impartiality”, the same grounds for a representative of the public (Article 21 of the Code of Civil Procedure).

So are the separate grounds for disqualifying a judge, Articles 18 and 19 of the Code of Civil Procedure:

a) if he previously participated in the case as a secretary, translator,

representative, witness, prosecutor;

b) is a relative of a person participating in the case;

c) if a judge considered a case in one instance, then already working in another instance he cannot consider this case.

But point (c) for the prosecutor, expert, translator and court secretary cannot be a basis for challenge, but points (a) and (b) are

for them the basis for challenge (Article 20 of the Code of Civil Procedure).

There are also additional grounds for challenge for the expert:

if he is or was in official or other dependence on the persons participating in the case, if he carried out an audit,

the materials of which served as the basis for the initiation of this kind of gr. affairs, and when it is discovered that he is not competent.

The court cannot include relatives; the Code of Civil Procedure does not determine the circle of relatives, so one should also proceed from distant relationships (nephews, second cousins, etc.).

The challenge that is declared must be motivated, for others

participants in the process, the judge finds out the opinion on the challenge. Challenges are allowed by making a “decision” in the deliberation room. The determination is made by the judge and people's assessors in relation to everyone else. And in relation to themselves, they make a determination together, if it is declared to three, and by the remaining two, if to one, while the secrecy of the deliberation room is maintained, voting takes place, and if there is an equality of votes, the challenge is considered valid. If the judge

single-handedly considers the case, then he also decides the issue of recusal,

also with the issuance of a determination.

If the challenge is granted, then the challenged person is replaced immediately, or the case is postponed, perhaps even transferred to another court if there is no one to listen to it. The ruling cannot be appealed, it can only be protested by the prosecutor or the chairman of the court. In practice, challenges are rarely granted, self-challenges are not declared, and the case is simply transferred to another judge, another secretary is involved in the case, etc. In the process of considering the issue of challenges, the issue of whether the case should be considered collectively or by a single judge is also resolved. In those cases that are considered individually in accordance with Article 113 of the Code of Civil Procedure and Article 245 of the Code of Civil Procedure, the judge alone enters into the process and there cannot be questions about collegiality, even if the parties want this, since the sole procedure is established by the legislator, in relation to other cases, such as recognition invalid transactions, complaints against the actions of officials, housing disputes, the case can be considered by a judge alone, while the persons participating in the case do not object, which they sign in the protocol, if the plaintiff is not against the sole consideration of the case, but another participant, even 3 person objects, the case should be considered collectively. In this case, the judge either looks for lay judges or even postpones the case for another day. When the court subsequently decides to consider the case individually, and someone was not present during the consideration of the case, then if he writes a complaint and indicates that he did not agree with the sole consideration of the case, this may serve as a reason to cancel the decision. Therefore, it is reasonable, when conducting pre-trial preparation of cases, to ask individuals whether they agree to the sole consideration of the case.

The court is usually always the presiding judge (Article 155 of the Code of Civil Procedure), and this is what the law requires, so that the rights and obligations are explained by the presiding officer, the rights and obligations of the persons participating in the case, namely the parties, third parties, specialists, experts, and the public. The composition of the court is not explained to the prosecutor or lawyer. There are no witnesses in the room at this stage. An indication that rights and obligations are explained in the protocol is mandatory.

existing in the case, a petition to interrogate a witness, to obtain evidence, to interrogate someone. At the same time, the opinions of others on what is stated are always heard, and the conclusion of the prosecutor, if he

participates in the process.

In case of failure to appear in court by persons from whom no notification has been received about the reason for the failure to appear, or there are no receipts for receipt of subpoenas for the case

postponed. If the case is not complicated, the plaintiff has appeared, then the court in case

existing receipt can go to the absentee procedure for consideration of the case, but the plaintiff must be notified about this and all the consequences of the absentee consideration of the case are explained to him, the plaintiff usually himself asks to consider the case in absentia, but at the same time he does not have the right to change the claims, increase the amount of demands and must wait 15 days to see if the defendant will file an application to set aside the default judgment; here there is simply a conflict of law, since in ten days and default judgment comes into effect.

There may be a situation when everyone is notified, but someone does not appear for a valid reason, and the court must not only postpone the case, sometimes

has the right to suspend (business trip, illness). Sometimes participants ask to consider a case in their absence, usually these are organizations about

than notify the court by written notice. Usually, this is when nothing depends on the testimony of a representative, for example, the municipal housing committee registers ownership of housing,

a dispute about the right between heirs, the participation of a committee representative is not necessary, an extract from the database is provided.

The court may consider the case in the absence of the defendant if he

deliberately delays the consideration of the case, is dishonest in in this case the defendant believes that without him “they will not judge him” and either he is on a business trip, or is ill, or did not appear without specifying a reason, or asks to be postponed since his lawyer is not present, while it should be kept in mind that the failure of a lawyer to appear without a good reason is not an obstacle to the consideration of the case, but the failure of the representative notified of the day of the hearing to appear, if in court the person represented is not an obstacle to the consideration of the case.

The main thing you need to understand is that this issue is always considered and decided depending on the circumstances of the case and the persons, number of participants

process. So sometimes there are up to 20 defendants in a case, and the case can be considered against them as usual, and against someone as a failure to appear in accordance with Article 157 of the Code of Civil Procedure or as in absentia against the defendant

(one of them or several).

An option is possible when the plaintiff does not appear in court, the first time the case is postponed, and the second time it remains without consideration, but with the condition,

that the defendant does not demand to consider the case on its merits; if he does, then instead of the plaintiff’s testimony, the court reads out the statement of claim.

Due to the failure of anyone, including a witness or an expert, to appear, the court may postpone the case without starting the investigation and explanations of the parties,

and after examining the case, explanations of the parties, or one plaintiff, defendant, third party. If there is reason to believe that someone will not appear at the next court hearing, and according to the plot of the case

the testimony is important, the court will interrogate the participant in the process who appeared in court.

If the court postpones the hearing of the case, then the persons are immediately informed of the new date, they sign that they have been notified, not

Summons are sent to those present.

So, if there are no grounds for postponing or suspending the case, then the court proceeds to the hearing of the case on the merits Article 164-184

Civil Procedure Code. One of the judges reports the case, for example, the case is being heard on Petrov’s claim against Selezneva for the protection of honor and dignity and compensation for moral damage in the amount of 5 thousand rubles, then

the presiding officer says: “Plaintiff Petrov filed a lawsuit against Selezneva for the protection of honor and dignity, since he believes that Selezneva, in the reference issued to him, provided information that was not true and derogated from his dignity and

asks the court to recover 5 thousand rubles in compensation for moral damage.” Next, the question must be asked: “Does plaintiff Petrov support his claims?” The plaintiff answers: “Yes,” it is possible, of course, that he

and will state some additional demands or abandon the claim, or say that he agrees to a peaceful resolution of the dispute and has already agreed with the defendant to close the case, and she will pay him two thousand rubles.

In such cases, the court finds out how the defendant relates to the plaintiff’s statements, and if there is a waiver of the claim or a settlement agreement, then the court no longer considers the case on its merits. And a determination is made about

approval of the settlement agreement. I draw your attention to the fact that the settlement agreement must be set out by the parties clearly and clearly, in writing, in the protocol they sign that the consequences

the approvals of the settlement agreement were explained to them. The binding force of the settlement agreement, in case of non-compliance, you can apply with a request to write out performance list in the order of cassation and supervision, the ruling can be appealed and protested, the text of the settlement

agreement is attached to the case and remains with the parties; a writ of execution may be issued for execution. The court's ruling on approval of the settlement agreement contains the very terms of the agreement.

At the same time, the conditions cannot violate the law, and therefore cannot always be approved by the court. The settlement agreement must be on the subject of the dispute. If the claim is abandoned, the court does not find out the motives and in any case

obliged to accept the waiver of the claim. In both of these cases, the proceedings are terminated. The determination to accept the waiver of the claim may also be the subject of appeal and protest.

There is also a procedure for the defendant to acknowledge the claim, that is, the defendant at the court hearing, or even before the trial in a written statement declares his agreement with the claim, he can admit the claim in some part.

A party may admit some fact, then this circumstance no longer needs to be proven, for example, the defendant declares that he has already transferred some amount to the plaintiff as compensation for damages, if the plaintiff is

confirms, then receipts, etc. not required.

In a settlement agreement, waiver of a claim, or recognition of a claim, the principle of dispositivity is expressed, i.e. possibilities of the parties

exercise your rights in civil proceedings. This

was a pattern of development of civil substantive law, since the new Civil Code expanded the possibilities of action at its own discretion “Citizens and legal entities at their own discretion exercise their civil rights” Part 1 Article 9 Part 1

Civil Code of the Russian Federation. A to civil rights The right to judicial protection also applies.

That is, the subjects of law themselves decide how to defend themselves in court, go to court for protection or refuse. The main thing is that they perform these actions voluntarily, understand their meaning and consequences, these actions do not violate the law and these actions do not violate the rights of other persons, so there cannot be a settlement agreement on the property of a person not participating in the case.

The court checks whether the defendant’s recognition of the claim does not affect the rights of other persons, so the court cannot accept the recognition of the claim if we're talking about O

moving into an apartment if other persons who do not recognize the claim are also entitled to it, in which case the court must examine everything

circumstances of the case and make a decision on the merits of the dispute. If the recognition of the claim is accepted by the court, which must be reflected in the court decision, the claim is satisfied.

The interests of the plaintiff come first. When questioning a witness, the first to ask questions are those whose witness it is, the plaintiff, his lawyer, then the defendant, third parties, the expert, the court asks questions last. Questions asked by participants in the process may be rejected as

request, and by decision of the presiding judge in the case. As many as 7 articles of the code are devoted to the interrogation of witnesses, since the testimony of a witness

Frequent, accessible, significant, evidence. Those

the measures that are provided for witnesses in criminal cases during judicial reform should also be applicable to civil cases. However, when assessing witness testimony, the court should take into account that witnesses are often interested in the outcome of the case, because are relatives, acquaintances and neighbors.

Then the written evidence is examined.

Protocols of previously completed procedural actions are made public. As for material evidence, in practice it is very rarely examined in court.

The expert's opinion is usually already available in the materials

case, the court announces it; if there is no need, the expert is not interrogated, and may not be present during the consideration of the case.

Then the organs government controlled give an opinion on

In fact, these are organizations such as the guardianship department, notary chambers, i.e. those who supervise activities in certain areas, and the persons participating in the matter are under their subordination or in the field of their activities.

After considering all the evidence and hearing all participants, the presiding officer must find out whether there is more

additions, if not, then the court may postpone the case due to the need to involve someone else, or due to the possibility of obtaining additional evidence when this is necessary to protect the rights of the parties and third parties. persons, or announces the end: court

declares the investigation of the case completed and invites to take part in the judicial debate.

Please note that not only lawyers participate in the debate,

and all parties involved, even if a party has a lawyer, he can take part in the debate himself. The procedure for making speeches is regulated by Article 185 of the Code of Civil Procedure. Since speeches can say something that was not reflected in the previous speaker, you can use a remark, but a remark is not a second speech, but an opinion about some nuance, this does not mean one sentence, but also not a text per page. The response from the defendant is the last, by analogy with the last word of the defendant.

A little about the speeches of lawyers, if the speech is well constructed, then it is usually fascinating, says the plaintiff’s lawyer, there is no doubt he is right, but

the defendant will also speak, there is no doubt he is right, the main thing is in the construction of the lawyer’s speech (the law does not strictly regulate his speech, like a court decision), and it depends on the plot of the case, whether it is interesting or dry

legal, from competence, from the Russian language and logic. The behavior of a lawyer, his competence, relations with a client cannot be only his personal matter; he is entrusted with the function of providing

legal assistance to citizens, protection of their interests. The need to improve legislation is long overdue, but it all comes down to the issues of collecting large taxes from lawyers, as well as the desire

to nationalize the legal profession. However, in any case, a lawyer must act only by legal methods. “Profession gives us certain habits that come from our work. Like a blacksmith's

work leaves traces on his calloused hands, so for us, defenders, a protective streak always remains our property, not because we see, mainly, people with whom we sympathize, forgive, and for whom we regret... except us,

“Defenders, for the direct protection of them from offenders, the law has not created another class,” N. Plevako, speech in defense of Kurbatov.

One thing I want to say is that no matter how brilliant the lawyer’s speech was,

the main thing is that it discloses the legal position of the party; if there is legal argumentation, this is a plus. The court must not just succumb to emotions, but at this time assess whether it is still necessary to resume the trial on the merits, whether it is said in

speeches of something new, do the laws that the lawyer refers to really exist, and does he not distort their meaning.

It should be noted that there is only one prosecutor in the district, and as a rule his assistants act in court, but from the point of view of the Civil Procedure Code they are prosecutors, although all documents are already signed by the district prosecutor, they are only executors. Interaction with the judiciary is typical for

the prosecutor's office as a centralized body, aimed at creating guarantees of the rule of law in the country, protecting individual rights and freedoms, it should be borne in mind that the Constitution of the Russian Federation is dedicated to the prosecutor's office

one article No. 129, which is included in the section “Judicial power”, chapter 7, the prosecutor’s office is not part judiciary, even those prosecutors who participate in the consideration of the case are not included in

court employees. Within the framework of civil proceedings, the prosecutor's office carries out its activities in two directions: participation in the consideration of gr. cases, protesting violations of the law

decisions, definitions. Thus, over the last two years alone, prosecutors have participated in more than 600 thousand civil cases. These are cases of reinstatement, eviction, restriction

legal capacity, deprivation of parental rights. The participation of prosecutors is determined by law and is a guarantee of a legal and informed decision. The prosecutor has more opportunities to study the case under consideration; sometimes it happens that the prosecutor has no time to

consideration of the case in court, the situation was known: a complaint, an appeal from an organization.

Thus, cases such as deprivation of parental rights do not arise

sometimes spontaneously, for months, the family is observed by the juvenile affairs inspectorate, signals are received by the police, and the prosecutor supervises all this. Of course, this does not mean that whatever the prosecutor decides, such a decision will be made by the court, but the prosecutor is not an interested person who objectively approaches the case, therefore, the opinions of the prosecutor and the court almost always coincide.

The Law of the Russian Federation “On the Prosecutor's Office of the Russian Federation” clearly regulates: “the prosecutor, in the event of a violation of the rights and freedoms of man and citizen, brings a claim in the interests of the victims, when they, for health reasons, age or other reasons, cannot do this in person, or when they are violated

rights and freedoms of a significant number of citizens, or due to other circumstances the violation has acquired a special public importance" Therefore, the prosecutor must indicate in the application in whose interests the claim is brought and why the person himself cannot go to court. The speech of the prosecutor in the debate should not be confused; if he initiated the case, he speaks first, and his conclusion, which follows after the debate. The prosecutor also does not have the right to refer in his conclusion to circumstances that were not examined by the court; he must give an opinion on the merits of the case, referring to the legal position. Here is an approximate conclusion in the case of deprivation of parental rights: “Citizen Petrova, being the mother of two children born in 1989. and born in 1993, has withdrawn herself from their upbringing and maintenance, the children have been on state support for more than a year, Petrova is able to work, due to health reasons she can fulfill parental responsibilities, but does not work, leads an immoral lifestyle, leaving the children with her will negatively affect their upbringing , and therefore, in accordance with Articles 69, 70, 71 of the RF IC, I ask the court to deprive her of parental rights and transfer the children to the care of the guardianship department.”

After this, the court retires to deliberate to make a decision. The presiding officer must announce this

and not just get up and leave.

After making a decision in the deliberation room, the judge and the court panel return to the room and announce the decision out loud, reading out the full

text. When the decision is announced, everyone in the room stands.

But the presiding judge may allow someone from among the participants in the process to sit down due to weakness, physical

condition. It must be explained when and within what time frame you can appeal the decision. If no decision was made, then the corresponding determination is announced.

Sometimes such a determination may be a determination to resume judicial consideration of the case on the merits.

One type of definition may be the definition of

suspension of proceedings in a case, Articles 214 and 215 of the Code of Civil Procedure, the first speaks of the court’s obligation to suspend the case, and the second of the possibility.

At this time, experts examine the presented material and give an opinion, the parties can agree on a peaceful resolution of the dispute, legal successors enter into the case, etc. Suspension is more likely

for the court, the period of time during which it does not have the right to carry out procedural actions in the case, with the exception of the process of resuming proceedings in the case and setting a date for consideration.

Postponement of the trial of a case is the transfer of the process to another date, it is appointed at the court hearing.

The court may also make not a decision that resolves the case on the merits, but a ruling to terminate the proceedings in the case Article 219

Civil Procedure Code, which means for the participants in the process the end of the consideration

cases in court, due to the fact that the dispute cannot be considered in court or has already been considered or resolved amicably.

It is necessary to distinguish from termination leaving without consideration,

those. the court due to the fact that the conditions for filing a claim in court were not met or were filed by the wrong person, or the person does not appear (Article 221) does not consider

case. However, at any time the consideration of the case may be resumed at the request of the applicant or a new one may be started, but

similar process.

As for the protocol of the court session, the procedure for maintaining it is regulated by Article 226-230 of the Code of Civil Procedure, and one should have

In view of the fact that the secretary of the court session is not just a technical worker, but a procedural person, he is part of the court, challenges are filed for him, comments can be made on the protocol.

The protocol is a mirror of the trial, the main source of objective data with the help of which the legality and validity of decisions made by the court are verified. "He becomes

as a guarantor of the possibility of objective verification of not only decisions made, but also the legality of all actions of the court during the trial of the case” (Zubov V., “Protocol as a mirror of the trial”, Russian Justice, 9-98).

The currently achieved technical level allows us to thoroughly record everything that happens in the process. But is it necessary to put every word on paper? First of all, not everyone can build their own

speech is beautiful, logical, without repetition, the court has no right to demand this, since this is not an oratory test, some people can speak in court only by answering questions, then they speak in

essentially, therefore, not all testimony needs to be stated in the protocol as an answer to the question. All testimony on the merits of the dispute must be entered into the protocol, everything that the participants in the process ask to be included in the protocol, please note that no one except the presiding officer has the right

demand to be included in the protocol, but they can only ask. Such situations arise when someone said an important date, or something completely new, etc. Testimony is recorded in the first person: “I was married, I have

children, etc.” If a person speaks too quickly, or reads from a piece of paper, for example a petition, then the presiding officer may ask to speak more slowly, to pay attention to what is being said

protocol s/z, ask if the person would like his written request

attach to the case materials. The protocol must be a reflection of the entire course of the court session: there was a challenge, this should have been recorded, even if the challenge is rejected, the defendant came to the court hearing late, this means the entry: “the defendant Petrov appeared in court,” and the conditions for the defendant must be met to exercise his rights, i.e. trial must be interrupted, the right to challenge, his rights are explained to him, the essence of the case is stated, possible re-examination of witnesses, testimony of the plaintiff (there are no rules in the law for such a situation, this is the opinion of the author of the lectures, since if the defendant is admitted into the hall, not as a person present extraneous, then his rights must be respected, otherwise this is a violation of his rights, or the judge does not consider that he appeared in court (which is more reasonable for the presiding judge to decide). The protocol must be written correctly, close to the speech pronounced in court, but the speeches of the lawyers and the prosecutor are written briefly, the questions themselves are not recorded unless they have been rejected. If there are several plaintiffs (defendants) in the case and they have similar demands or testimony, then only one can speak on behalf of all of them, by proxy, or by trust during the meeting. If witnesses give similar testimony, the court may find further questioning of witnesses inappropriate.

The protocol must be written in one ink, without blots,

all corrections are specified. So on the sheet where the correction was made, for example, the last name is indicated incorrectly, at the end of the sheet (page) the secretary writes to believe the corrected person, and the judge and the secretary certify this. If some lines are missing (usually when the secretary left more space than necessary in order to enter what he did not have time to write), then the Latin “z” is added.

All documents that were included during the meeting are filed before the minutes, and after the minutes they are filed

only a decision or ruling of the court to terminate the case, to suspend the case.

Minutes are kept during the meeting, but one day is given for its preparation. However, the law does not provide for such situations as the illness of a secretary or a judge, who cannot

sign, protocol from one sheet or from 30 sheets, terminology of family affairs or copyright. Therefore, it is necessary to legislate the right of the court to extend the period for preparing the protocol, and to suspend (in case of illness) the period for its production.

It is necessary to do this, since within three days, persons can submit comments on the protocol; if it is not prepared, then they have to raise before the court the issue of extending the period for filing comments on

protocol, but they do not know when they will be able to familiarize themselves with it. The procedure for making comments on the protocol should not be abolished, however, the circle of persons who can bring them should include witnesses,

since the record reflects their testimony. Extension issues

the production of a protocol could be permitted by a ruling of the court, the judge, the chairman of the court, in the event of illness of the judge in the case, if he considered the case without assessors.

The problem is not that the courts will abuse and delay the preparation of protocols, but that the courts have a heavy workload,

the incompetence of the secretaries, their lack of skills to grasp things “on the fly”, sometimes without a judge they cannot write a protocol or are lazy.

I would like to draw your attention to the fact that the presiding officer’s decision regarding comments on the protocol s/z cannot be appealed.

If the secretary wrote in the protocol that something is not right, as the judge believes, then if you strictly follow the law, by analogy with Article 229 of the Code of Civil Procedure, the judge must bring comments and consider them, but in practice

the secretary rewrites what was wrong. In addition, unfortunately, cases are not uncommon when a judge himself prepares a protocol for a secretary who is sick at a session, and then waits for his signature. From the skill of the judge

The quality of the protocol also depends on how the process is conducted; it is appropriate to give instructions during the meeting to the secretary what to write down in the minutes, ask the person to repeat it, this does not at all mean dictating the minutes.

Even if sound or video recording is carried out at the court hearing, then the protocol must be kept, and a note about this is made in the protocol. Permission for recording is not required, but

Videos and photos require permission from the presiding officer. A good article on this issue is available in the journal Russian Justice No. 12, 1998, p. 146.

At higher authorities, protocols are not kept, but this is only

due to the savings in legal proceedings. The ways in which the legislation on the s/z protocol will develop in the future are different, both from the complete abolition of the protocol, and to a transcript and recording that will be added to the case.

Note: the text of the lecture does not reproduce the contents of the articles of the Code of Civil Procedure in full, since the author considers this unnecessary, they can be

read during a lecture on the code, the students themselves will also read them, the main thing is that their numbers are named, but indications are given of those points in the rules of law that are understood differently, or that are not paid attention to

attention when briefly reading the rules of the Code of Civil Procedure.

Judicial proceedings, taking into account the purposefulness of the procedural actions performed, are usually divided into four components:

1. preparatory;

2. consideration of the case on its merits;

3. judicial debates and the prosecutor’s conclusion;

4. ruling and announcement of the court decision.

Each of them is characterized by its own procedural purpose, content, and a certain range of issues.

> Preparatory part

The trial begins with the preparatory part.

The preparatory part of the trial is its initial part, which consists in the performance of legally significant actions by participants in civil proceedings with the leading role of the court, which are aimed at creating conditions that ensure the effectiveness of the study of evidence, establishing the factual circumstances of the case, and protecting the interests of the persons participating in the case.

The preparatory part of the court session is regulated by Articles 147-153 of the Code of Civil Procedure of the Russian Federation.

At the time appointed for the hearing of the case, the presiding judge opens the court session and announces which case is to be considered. Then the secretary of the court session reports to the court which of the persons summoned in the case appeared, whether those who failed to appear were served with summons, and what information is available about the reasons for the failure to appear. The court (presiding judge) establishes the identity of those who appear, checks the powers of officials and representatives. If a translator is involved in the case, the presiding officer explains his duties and warns him of liability for knowingly incorrect translation.

Witnesses who have appeared in the case are removed from the courtroom before the interrogation begins. The presiding officer ensures that interrogated witnesses do not communicate with those who have not yet been interrogated.

Next, the presiding judge announces the composition of the court, informs who is participating as a prosecutor, a representative of the public, an expert, a translator, and a secretary of the court session. The persons participating in the case are explained their right to challenge (the grounds for challenge are provided for in Articles 16-21 of the Code of Civil Procedure of the Russian Federation).

In accordance with Articles 16 - 18 of the Code of Civil Procedure of the Russian Federation, the list of persons subject to challenge is exhaustive. Therefore in civil process subject to withdrawal:

b) prosecutor;

c) secretary of the court session;

d) expert;

d) specialist;

f) translators Commentary on the Civil procedural code Russian Federation(article-by-article, scientific-practical) / Ed. M.A. Vikut. - M., 2008. - P.309..

A challenge filed against a judge during a single hearing of a case is resolved by the same judge.

The issue of disqualification of other participants in the process is resolved by the court hearing the case.

If requests to disqualify a judge or the entire court are satisfied, the case will be considered in the same court, but with a different composition of judges, and if it is impossible to form a new composition of the court, the case will be transferred for consideration to another court.

After resolving requests for challenges, the presiding officer explains to the persons participating in the case their procedural rights and obligations, and to the parties, in addition, their right to apply for resolution of the dispute to an arbitration court and the legal consequences of such an application. Then the judge finds out whether the parties and other persons participating in the case have any petitions and statements (for example, to request additional evidence, postpone the trial of the case, etc.). Depending on the complexity of the issues, the court either retires to a deliberation room to resolve them, or makes a determination after a meeting on the spot at the court session.

The last issue resolved in this part of the court session is the question of the possibility of considering the case in the absence of any of the persons summoned to the court session (Articles 167 - 168 of the Code of Civil Procedure of the Russian Federation).

If any of the persons participating in the case, for whom there is no information about their notification, fails to appear at the court hearing, the hearing of the case is postponed. If the persons participating in the case were duly notified of the time and place of the court hearing, but did not appear for reasons recognized as valid, the court postpones the hearing of the case.

The consequences of the failure of persons participating in the case to appear are determined, first of all, by the respectability or disrespect of the reasons for the failure to appear.

The parties have the right to ask the court to consider the case in their absence and to send them a copy of the court decision. The court may recognize the participation of the parties in the court hearing as mandatory if this is necessary under the circumstances of the case. The failure of a representative of a person participating in the case, notified of the time and place of the trial, to appear is not an obstacle to the consideration of the case V.V. Yarkov. Civil process. Textbook for universities, edition: 6th. - M., 2006. - P.112..

If the trial of a case is postponed, the court has the right to question the witnesses who have appeared, provided that the parties are present at the court hearing. The second summoning of these witnesses to a new court hearing is allowed only in cases of necessity.

If witnesses or experts fail to appear at the court hearing, the court listens to the opinions of the persons participating in the case and the prosecutor’s opinion on the possibility of considering the case in the absence of those who failed to appear and makes a decision to continue the trial or to postpone the trial. If any of them fails to appear for reasons recognized by the court as disrespectful, then he is subject to a fine of up to 1000 rubles, and if he fails to appear on a second summons, he is subject to forced detention (Part 2 of Article 168 of the Code of Civil Procedure of the Russian Federation).

Ensuring the appearance of participants in the trial in court became a huge problem. In many courts, subpoenas are also sent by mail, where delivery delays and lost subpoenas may occur. Postmen are not interested in personally delivering a summons, for example, if they do not find the person at home. As a result, the participant in the process does not appear in court for an objective reason - he did not receive a summons.

To improve this stage, according to the author, there is a need to legislate the following measures:

The court should take steps to facilitate or encourage, where appropriate, reconciliation between the parties or amicable settlement of the dispute before or during the proceedings;

The court should have the opportunity to call witnesses, and if witnesses fail to appear without good reason, impose appropriate sanctions on such witnesses (in the form of fines, damages, etc.). If a witness fails to appear, the court must independently decide whether to continue the proceedings without hearing his testimony;

It is necessary to improve the procedure for serving judicial subpoenas in order to eliminate the possibility of non-delivery of subpoenas to participants in the process, for example, by approving in the staffing table of the courts the position of a courier responsible for serving subpoenas.

Preparatory - the court decides the issues of the trial of the case with a given composition of the court, the trial of the case when the participants in the process have appeared, the consideration of the case by this court or adjournment (but adjournment may also follow other parts of the trial).

Research - study of the circumstances of the case.

Judicial debate and the prosecutor's conclusion - different parts

Decree and announcement of the decision

Preparatory part s/z.

Even before the court enters the courtroom, the court secretary must find out which of the participants in the process has appeared.

At the appointed time, the court composition enters the courtroom; the persons participating in the case are in the courtroom, which is always open during court hours.

The presiding judge in the case opens the court session and announces which case is to be heard, for example, a civil case is being heard on Ivanov’s claim against Petrov for compensation for damage in connection with a collision of vehicles.

Then the attendance of the participants in the process is checked, the secretary of the court session must report on the appearance, but usually the presiding officer himself finds out who has appeared, the persons participating in the case present their documents (passports) and powers of attorney to the judge.

If a translator is involved in the case, the presiding officer explains his duties and warns him of criminal liability. If there are witnesses in the courtroom, then they are removed from the room so that they do not hear the testimony of the parties, they should not communicate with each other, therefore those who have already been interrogated are left in the courtroom, or with the permission of the court they can leave. Ideally, witnesses should be provided with accommodations to await being called into the courtroom. Witnesses can be removed from the courtroom, and after a participant in the process makes a motion to question a witness who has not yet been brought into the case as a witness, the court discusses this motion, almost always satisfies and removes the witness from the courtroom.

After this, the composition of the court is announced, the names of the judge, the presiding judge, people's assessors, the prosecutor, a representative of the public, the labor collective (you feel that the Civil Procedure Code is outdated in relation to the last two), an expert, a translator, and a secretary of the court session are announced. Sometimes a spare person is involved in the case - in case one of the assessors is unable to participate in the further consideration of the case, this happens very, very rarely, just in case of emergency, when the case is very voluminous, so as not to start it over again. Nowadays, courts are experiencing difficulties in forming and already approved list of people's assessors.

The presiding officer explains that the persons participating in the case are parties. third parties, representatives of organizations, have the right to challenge anyone from the court.

Please note that a judge cannot challenge a judge, but a prosecutor can challenge someone from the court. The lawyer supports or not the challenge declared by his client. The expert does not have the right to challenge. However, each member of the court may recuse himself. Challenges are resolved by the court in the order in which they are filed by the participants in the process - from the plaintiff to third parties, first challenges to the panel of judges, then to the prosecutor, the secretary, according to the procedure of Article 154 of the Code of Civil Procedure.

The basis for challenges is common to all - Article 17 of the Code of Civil Procedure: “A judge, people’s assessor, prosecutor, secretary, expert and translator cannot participate in the consideration of the case and are subject to challenge if they are personally, directly or indirectly, interested in the outcome of the case or have other circumstances that raise doubts about their impartiality,” the same grounds for a representative of the public (Article 21 of the Code of Civil Procedure).

So are the separate grounds for disqualifying a judge - Articles 18 and 19 of the Code of Civil Procedure:

a) if he previously participated in the case as a secretary, translator, representative, witness, prosecutor;

b) is a relative of a person participating in the case;

c) if a judge considered a case in one instance, then already working in another instance he cannot consider this case.

But point (c) for the prosecutor, expert, translator and court secretary cannot be a basis for challenge, but points (a) and (b) are grounds for challenge for them (Article 20 of the Code of Civil Procedure).

There are also additional grounds for challenge for the expert:

if he is or was in official or other dependence on the persons involved in the case, if he carried out an audit, the materials of which served as the basis for initiating this type of gr. affairs, and when it is discovered that he is not competent.

The court cannot include relatives; the Code of Civil Procedure does not determine the circle of relatives, so one should also proceed from distant relationships (nephews, second cousins, etc.).

The challenge that is filed must be motivated by other participants in the process; the judge finds out the opinion on the challenge. Challenges are allowed by making a “decision” in the deliberation room. The determination is made by the judge and people's assessors in relation to everyone else. And in relation to themselves, they make a determination together, if it is declared to three, and by the remaining two, if to one, while the secrecy of the deliberation room is maintained, voting takes place, and if there is an equality of votes, the challenge is considered valid. If the judge alone considers the case, then he also decides the issue of recusal, also by issuing a ruling.

The court is usually always the presiding judge (Article 155 of the Code of Civil Procedure), and this is what the law requires, so that the rights and obligations are explained by the presiding officer, the rights and obligations of the persons participating in the case, namely the parties, third parties, specialists, experts, and the public. The rights are not explained to the prosecutor or lawyer - they are members of the court. There are no witnesses in the room at this stage. An indication that rights and obligations are explained in the protocol is mandatory.

After it has been determined who has appeared and their rights have been explained, the court resolves the application by issuing rulings on the spot or in the deliberation room. This could be a statement about the forgery of a document in the case, a petition to interrogate a witness, to demand evidence, to interrogate someone. At the same time, the opinions of others on what is stated are always heard, as well as the conclusion of the prosecutor, if he is involved in the process.

In case of failure to appear in court by persons from whom no notification has been received about the reason for the failure to appear, or there are no receipts for receipt of subpoenas, the case is postponed. If the case is not complicated, the plaintiff has appeared, then the court, in the case of an available receipt, can proceed to the procedure for considering the case in absentia, but the plaintiff must be informed about this and all the consequences of the absentee consideration of the case are explained to him, the plaintiff usually himself asks to consider the case in absentia, but in case in this case, he does not have the right to change the claims, increase the size of the requirements and must wait 15 days to see if the defendant will file an application to cancel the default judgment; here there is simply a conflict of law, since after ten days the decision in absentia comes into force.

There may be a situation when everyone was notified, but someone did not appear for a valid reason, and the court must not only postpone the case, sometimes it has the right to suspend it (business trip, illness). Sometimes participants ask to consider the case in their absence, usually these are organizations, which they notify the court of in writing. Usually, this is when nothing depends on the testimony of a representative, for example, a municipal housing committee registers ownership of housing, a dispute about the right between heirs, the participation of a committee representative is not necessary, an extract from the database is provided.

The court can consider the case in the absence of the defendant, if he deliberately delays the consideration of the case, the defendant, who is unscrupulous in this case, believes that without him “they will not judge him,” and he is either on a business trip, or ill, or did not appear without specifying a reason, or asks to postpone since there is no lawyer, it should be borne in mind that the failure of a lawyer to appear without a good reason is not an obstacle to the consideration of the case, and the failure of a representative notified of the day of the hearing, if the person being represented in court, is not an obstacle to the consideration of the case.

The main thing to understand is that this issue is always considered and decided depending on the circumstances of the case and the persons and number of participants in the process. So sometimes there are up to 20 defendants in a case, and the case can be considered against them as usual, and against someone as a failure to appear in accordance with Article 157 of the Code of Civil Procedure or as in absentia against a defendant (one of them or several).

An option is possible when the plaintiff does not appear in court, the first time the case is postponed, and the second time it remains without consideration, but with the condition that the defendant does not demand that the case be considered on the merits; if he demands, then instead of the plaintiff’s testimony, the court reads out a statement of claim .

Due to the failure of anyone, including a witness or an expert, the court may postpone the case, either without proceeding to the investigation and explanations of the parties, or after examining the case, explanations of the parties, or one plaintiff, defendant, or third party. If there is reason to believe that someone will not appear at the next court hearing, and according to the plot of the case, testimony is important, the court will interrogate the participant in the process who appeared in court.

If the court postpones the hearing of the case, then the persons are immediately informed of the new date, they sign that they have been notified, and summonses are sent to those not present.

So, if there are no grounds for postponing or suspending the case, then the court proceeds to the hearing of the case on the merits of Article 164-184 of the Code of Civil Procedure. One of the judges reports the case, for example, a case is being heard on Petrov’s claim against Selezneva for the protection of honor and dignity and compensation for moral damage in the amount of 5 thousand rubles, then the presiding judge says: “Plaintiff Petrov filed a claim against Selezneva for the protection of honor and dignity, because he believes that Selezneva, in the reference given to him, provided information that was untrue and derogatory to his dignity and asks the court to recover 5 thousand rubles in compensation for moral damage.” Next, the question must be asked: “Does plaintiff Petrov support his claims?” The plaintiff answers: “Yes,” it is possible, of course, that he will make some additional demands or abandon the claim, or report that he agrees to a peaceful resolution of the dispute and has already agreed with the defendant to close the case, and she will pay him two thousand rubles . In such cases, the court finds out how the defendant relates to the plaintiff’s statements, and if there is a waiver of the claim or a settlement agreement, then the court no longer considers the case on its merits. And a ruling is made to approve the settlement agreement. I draw your attention to the fact that the settlement agreement must be stated by the parties clearly and clearly, in writing, in the protocol they sign that the consequences of the approval of the settlement agreement have been explained to them. The binding force of the settlement agreement is that in case of non-fulfillment, you can apply for a writ of execution in the order of cassation and supervision; the determination can be appealed and protested, the text of the settlement agreement is attached to the case and remains with the parties; a writ of execution can be issued for execution. The court's ruling on approval of the settlement agreement contains the very terms of the agreement. At the same time, the conditions cannot violate the law, and therefore cannot always be approved by the court. The settlement agreement must be on the subject of the dispute. If the claim is abandoned, the court does not find out the motives and in any case is obliged to accept the refusal of the claim. In both of these cases, the proceedings are terminated. The determination to accept the waiver of the claim may also be the subject of appeal and protest.

In a settlement agreement, waiver of a claim, or recognition of a claim, the principle of dispositivity is expressed, i.e. the ability of the parties to dispose of their rights in civil proceedings. This was a pattern of development of civil substantive law, since the new Civil Code expanded the possibilities of acting at its own discretion “Citizens and legal entities, at their own discretion, exercise their civil rights”, Part 1, Article 9, Part 1 of the Civil Code of the Russian Federation. Civil rights also include the right to legal protection. That is, the subjects of law themselves decide how to defend themselves in court, go to court for protection or refuse. The main thing is that they perform these actions voluntarily, understand their meaning and consequences, these actions do not violate the law and these actions do not violate the rights of other persons, so there cannot be a settlement agreement on the property of a person not participating in the case.

The court checks whether the defendant’s recognition of the claim does not affect the rights of other persons, so the court cannot accept the recognition of the claim if we are talking about moving into an apartment, if other persons who do not recognize the claim have the right to it, in this case the court must examine everything circumstances of the case and make a decision on the merits of the dispute. If the recognition of the claim is accepted by the court, which must be reflected in the court decision, the claim is satisfied.

After the report of the case, the parties give explanations on the case. If third parties are involved in the case, then they act on the relevant side. The prosecutor or other persons who go to court to protect the interests of the plaintiff act first. When questioning a witness, the first to ask questions are those whose witness it is, the plaintiff, his lawyer, then the defendant, third parties, the expert, the court asks questions last. Questions asked by participants in the process may be rejected either at the request or by decision of the presiding judge in the case. As many as 7 articles of the code are devoted to the interrogation of witnesses, since the testimony of a witness is frequently occurring, accessible, significant evidence. The measures that are provided for witnesses in criminal cases should also be applied in civil cases during judicial reform. However, when assessing witness testimony, the court should take into account that witnesses are often interested in the outcome of the case, because are relatives, acquaintances and neighbors.

Then the written evidence is examined.

Protocols of previously completed procedural actions are made public. As for material evidence, in practice it is very rarely examined in court.

The expert's opinion is usually already available in the case materials; the court reads it out; if there is no need, the expert is not interrogated and may not be present during the consideration of the case.

Then, government bodies give an opinion on the case - these are organizations such as the guardianship department, notary chambers, i.e.

Those who supervise activities in certain areas, and the persons participating in the matter are under their subordination or in the field of their activities.

After considering all the evidence and hearing all the participants, the presiding officer must find out whether there are any more additions; if not, the court may postpone the case due to the need to involve someone else, or due to the possibility of obtaining additional evidence when this is necessary to protect the rights of the parties and third. persons, or announces the end: the court declares the investigation of the case completed and invites them to take part in the judicial debate.

Please note that not only lawyers, but all participating persons participate in the debate, even if a party has a lawyer, he can take part in the debate himself. The procedure for making speeches is regulated by Article 185 of the Code of Civil Procedure. Since speeches can say something that was not reflected in the previous speaker, you can use a remark, but a remark is not a second speech, but an opinion about some nuance, this does not mean one sentence, but also not a text per page. The response from the defendant is the last, by analogy with the last word of the defendant.

A little about the speeches of lawyers, if the speech is constructed well, then it is usually fascinating, says the plaintiff’s lawyer, there is no doubt - he is right, and if the defendant speaks, there is also no doubt - he is right, the main thing is in the construction of the lawyer’s speech (the law does not strictly regulate his speech , as a court decision), and depends on the plot of the case, interesting or dry legal, on competence, on the Russian language and logic. The lawyer’s behavior, his competence, and relationships with the client cannot be his personal business alone; he is entrusted with the function of providing legal assistance to citizens and protecting their interests. The need to improve legislation is long overdue, but it all comes down to the issues of collecting large taxes from lawyers, as well as the desire to nationalize the legal profession. However, in any case, a lawyer must act only by legal methods. “Profession gives us certain habits that come from our work. Just as a blacksmith’s work leaves traces on his calloused hands, so for us, defenders, a protective vein always remains our property, not because we see, mainly, people who we sympathize, forgive, and for whom we regret... except for us, defenders, for the direct protection of them from offenders, the law has not created another class,” N. Plevako speech in defense of Kurbatov.

One thing I want to say is that no matter how brilliant the lawyer’s speech is, the main thing is that it reveals the legal position of the party; if there is legal argumentation, this is a plus. The court must not just succumb to emotions, but at this time assess whether it is still necessary to resume the trial on the merits, whether something new is said in the speeches, whether the laws that the lawyer refers to really exist, and whether he is distorting their meaning .

Next, the next stage is the prosecutor's conclusion. In any case, the prosecutor gives an opinion as to whether he is participating in the case or whether he has brought a claim in the interests of a person or the state. At the same time, I would like to note that there is only one prosecutor in the district, and as a rule, his assistants act in court, but from the point of view of the Civil Procedure Code, they are prosecutors, although all documents are already signed by the district prosecutor, they are only executors. Interaction with the judiciary is typical for the prosecutor's office as a centralized body, which aims to create guarantees of the rule of law in the country, protect individual rights and freedoms, it should be borne in mind that in the Constitution of the Russian Federation one article No. 129 is devoted to the prosecutor's office, which is included in the section "Judicial Power" Chapter 7 The prosecutor's office is not part of the judiciary, even those prosecutors who participate in the consideration of the case are not among the employees of the court. Within civil proceedings The prosecutor's office carries out its activities in two directions: participation in the consideration of gr. cases, protesting decisions and rulings that contradict the law. Thus, over the last two years alone, prosecutors have participated in more than 600 thousand civil cases. These are cases of reinstatement at work, eviction, limitation of legal capacity, and deprivation of parental rights. The participation of prosecutors is determined by law and is a guarantee of a legal and informed decision. The prosecutor has more opportunities to study the case under consideration; sometimes it happens that the prosecutor was already aware of the situation before the case was considered in court: a complaint, an appeal from an organization.

Thus, such cases as deprivation of parental rights sometimes do not arise spontaneously; the family is monitored by the juvenile affairs inspectorate for months, signals are received by the police, and the prosecutor supervises all this. Of course, this does not mean that whatever the prosecutor decides, such a decision will be made by the court, but the prosecutor is not an interested person who objectively approaches the case, therefore, the opinions of the prosecutor and the court almost always coincide.

As a participant in the process, the prosecutor may initiate a civil case. The civil process in this case acts as a means for the prosecutor to achieve the tasks and goals of prosecutorial supervision. The prosecutor has civil procedural legal capacity (this is the opinion of V.V. Yarkov “Legal facts in the mechanism for implementing the norms of civil procedural law”, 1992 pp. 124-125, Yekaterinburg). Thus, Article 27, paragraph 4 of the Law of the Russian Federation “On the Prosecutor’s Office of the Russian Federation” clearly regulates: “the prosecutor, in the event of a violation of the rights and freedoms of man and citizen, brings a claim in the interests of the victims when they, for health reasons, age or other reasons, cannot do this in person, or when the rights and freedoms of a significant number of citizens have been violated, or due to other circumstances the violation has acquired special social significance.” Therefore, the prosecutor must indicate in the application in whose interests the claim is brought and why the person himself cannot go to court. The speech of the prosecutor in the debate should not be confused; if he initiated the case, he speaks first, and his conclusion, which follows after the debate. The prosecutor also does not have the right to refer in his conclusion to circumstances that were not examined by the court; he must give an opinion on the merits of the case, referring to the legal position. Here is an approximate conclusion in the case of deprivation of parental rights: “Citizen Petrova, being the mother of two children born in 1989 and 1993, has withdrawn herself from their upbringing and maintenance, the children have been on state support for more than a year, Petrova is able to work due to health reasons can fulfill parental responsibilities, but does not work, leads an immoral lifestyle, leaving the children with her will negatively affect their upbringing, and therefore, in accordance with Articles 69, 70, 71 of the RF IC, I ask the court to deprive her of parental rights and transfer the children to the care of the guardianship department ".

After this, the court retires to deliberate to make a decision. The presiding officer must definitely announce this, and not just get up and leave.

After making a decision in the deliberation room, the judge and the court panel return to the courtroom and announce the decision out loud, reading out the full text. When the decision is announced, everyone in the room stands.

But the presiding officer may allow someone from among the participants in the process to sit down due to infirmity, physical condition. It must be explained when and within what time frame you can appeal the decision. If no decision was made, then the corresponding determination is announced.

Sometimes such a determination may be a determination to resume judicial consideration of the case on the merits.

One of the types of determinations may be a determination to suspend proceedings in a case under Articles 214 and 215 of the Code of Civil Procedure, the first speaks about the obligation of the court to suspend the case, and the second about the possibility.

Suspension is essentially a temporary break in the progress of the case, but this statement is conditional, so when the case is suspended, it does not mean that the participants in the process cannot collect additional evidence, but outside the court session, experts at this time examine the presented material and give an opinion , the parties can agree on a peaceful resolution of the dispute, legal successors enter into the case, etc. Suspension is, rather, for the court, a period of time during which it does not have the right to carry out procedural actions in the case, with the exception of the process of resuming proceedings in the case and setting a date for consideration.

Postponement of the trial of a case is the transfer of the process to another date, it is appointed at the court hearing.

The court may also make not a decision that resolves the case on the merits, but a ruling to terminate the proceedings under Article 219 of the Code of Civil Procedure, which means for the participants in the process the end of the consideration of the case in court, due to the fact that the dispute cannot be considered in court or has already was considered or resolved peacefully.

Leaving without consideration should be distinguished from termination, i.e. the court due to the fact that the conditions for filing a claim in court were not met or were filed by the wrong person, or the person does not appear (Article 221) does not consider the case. However, at any time the consideration of the case may be resumed at the request of the applicant or a new but similar process may be initiated.

As for the protocol of the court session, the procedure for maintaining it is regulated by Article 226-230 of the Code of Civil Procedure, and it should be borne in mind that the secretary of the court session is not just a technical worker, but a procedural person, he is part of the court; challenges are filed; challenges can be brought to the record comments.

The court protocol is a mirror of the trial, the main source of objective data with the help of which the legality and validity of decisions made by the court are verified. “It becomes, as it were, a guarantor of the possibility of objective verification of not only the decisions made, but also the legality of all actions of the court during the trial of the case” (Zubov V., “Protocol as a mirror of the trial”, Russian Justice, 9-98).

Various points of view are expressed regarding the fact that the technical process has covered all spheres of human activity, and in court, everyone, like in the last century, writes a protocol, like church chroniclers. The currently achieved technical level allows us to thoroughly record everything that happens in the process. But is it necessary to put every word on paper? First of all, not everyone can construct their speech beautifully, logically, without repeating themselves, the court has no right to demand this, since this is not an oratory test, some people can speak in court only by answering questions, then they speak to the point, so not everyone The testimony must be stated in the protocol as an answer to the question. All testimony on the merits of the dispute must be entered into the protocol, everything that the participants in the process ask to be included in the protocol; I draw your attention to the fact that except for the presiding officer, no one has the right to demand that it be entered into the protocol, but can only ask. Such situations arise when someone said an important date, or something completely new, etc. Testimony is recorded in the first person: “I was married, have children, etc.” If a person speaks too quickly, or reads from a piece of paper, for example a petition, then the presiding officer may ask to speak more slowly, note that a protocol is being kept, and ask whether the person would like to attach his written petition to the case materials. The protocol must be a reflection of the entire course of the court session: there was a challenge, this should have been recorded, even if the challenge is rejected, the defendant came to the court hearing late, this means the entry: “the defendant Petrov appeared in court,” while the conditions for the defendant must be met to exercise his rights, i.e. the trial must be interrupted, the right to challenge, his rights are explained to him, the essence of the case is stated, possible re-examination of witnesses, testimony of the plaintiff (there are no rules in the law for such a situation, this is the opinion of the author of the lectures, since if the defendant is allowed into the courtroom, not how the person present is an outsider, then his rights must be respected, otherwise this is a violation of his rights, or the judge does not consider that he has appeared in court (which is more reasonable for the presiding judge to decide). The protocol must be written correctly, close to the speech pronounced in court, but the speeches of the lawyers and the prosecutor are written briefly, the questions themselves are not recorded unless they have been rejected. If there are several plaintiffs (defendants) in the case and they have similar demands or testimony, then only one can speak on behalf of all of them, by proxy, or by trust during the meeting. If witnesses give similar testimony, the court may find further questioning of witnesses inappropriate.

The protocol must be written in the same ink, without blots, and all corrections must be specified. So on the sheet where the correction was made, for example, the last name is indicated incorrectly, at the end of the sheet (page) the secretary writes to believe the corrected person, and the judge and the secretary certify this. If some lines are missing (usually when the secretary left more space than necessary in order to enter what he did not have time to write), then the Latin “z” is added.

All documents that were attached during the meeting are filed with the case before the protocol; after the protocol, only the decision or ruling of the court to terminate the case or to suspend the case is filed.

Minutes are kept during the meeting, but one day is given for its preparation. However, the law does not provide for such situations as the illness of a secretary, a judge who cannot sign the finished protocol, a protocol of one sheet or 30 sheets, the terminology of family cases or copyright. Therefore, it is necessary to legislate the right of the court to extend the period for preparing the protocol, and to suspend (in case of illness) the period for its production. It is necessary to do this, since within three days, persons can submit comments on the protocol; if it is not prepared, then they have to raise before the court the issue of extending the period for filing comments on the protocol, while they do not know when they will be able to familiarize themselves with him. The procedure for making comments on the protocol should not be abolished, but witnesses should be included in the circle of people who can make them, since the protocol reflects their testimony. Issues of extending the period for preparing the protocol could be resolved by a ruling of the court, the judge, the chairman of the court, in the event of illness of the judge in the case, if he considered the case without assessors.

The problem is not that the courts will abuse and delay the preparation of protocols, but that the courts have a heavy workload, the incompetence of secretaries, their lack of skills to grasp on the fly, sometimes without a judge they cannot write a protocol or are lazy.

I would like to draw your attention to the fact that the presiding officer’s decision regarding comments on the protocol s/z cannot be appealed.

If the secretary wrote in the protocol that something is wrong, as the judge believes, then if you strictly follow the law, by analogy with Article 229 of the Code of Civil Procedure, the judge must bring comments and consider them, but in practice the secretary rewrites what was wrong . In addition, unfortunately, cases are not uncommon when a judge himself prepares a protocol for a secretary who is sick at a session, and then waits for his signature. The quality of the protocol also depends on the judge’s ability to conduct the process; it is appropriate to instruct the secretary during the meeting what to write down in the protocol, ask the person to repeat it, this does not at all mean dictating the protocol s/o.

Even if sound or video recording is carried out at the court hearing, then the protocol must be kept, and a note about this is made in the protocol. Permission for sound recording is not required, but for video and photos, permission from the presiding officer is required. A good article on this issue is available in the journal Russian Justice No. 12, 1998, p. 146.

In higher authorities, protocols are not kept, but this is only because of the economy of legal proceedings. The ways in which the legislation on the s/z protocol will develop in the future are different, both from the complete abolition of the protocol, and to a transcript and recording that will be added to the case.

Note: the text of the lecture does not reproduce the contents of the articles of the Code of Civil Procedure in full, since the author considers this unnecessary, they can be read during the lecture on the code, the students themselves will also read them, the main thing is that their numbers are named, but instructions are given on those points in the rules of law, which are understood differently, or which are not paid attention to during a cursory reading of the Code of Civil Procedure.