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

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

date and place of the ruling;
the name of the court that issued the ruling, the composition of the court and the secretary of the court session;
persons participating in the case, the subject of the dispute or the stated claim;
the matter on which the determination is made;
the reasons on which the court came to its conclusions and the reference to the law by which the court was guided;
court order;
the procedure and period for appealing the court's ruling, if it is subject to appeal.

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

In the legal literature, the definitions of the court of first instance qualified by content: preparatory, preemptive and final definitions.

Preparatory definitions refer to rulings made by the court during the resolution and consideration of a civil case, aimed at resolving issues of a preparatory nature.

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

Final definitions issued by the court upon completion of the proceedings civil case, if a court decision is impossible.

A special place in civil proceedings is occupied by private definitions. If cases of violation of the law are identified, the court may issue a private ruling, which it must forward to the relevant organizations or relevant officials.

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

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

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

Determination is a type of court ruling that does not decide the case on its merits.

Judicial rulings express the diverse administrative activities of the court.

Kinds definitions:

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

1. Determinations that end the process of resolving the dispute (final).

a) to terminate the proceedings due to the plaintiff’s refusal of the claim;

b) approving the settlement agreement of the parties.

2. Determinations that prevent the emergence of a process or end it without resolution or settlement of the dispute ( suppressive).

a) refusal to accept the statement of claim;

b) to terminate the proceedings on the grounds specified in the Code of Civil Procedure;

c) to leave the claim without consideration.

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

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

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

on collecting evidentiary material (on allowing evidence to be secured; on ordering an examination; on conducting an on-site inspection; on requesting or attaching written and material evidence; on calling witnesses, etc.);

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

4. Determinations regarding the decision made and its execution. These include determinations to clarify the decision; about its immediate execution; on ensuring the execution of a decision that is not subject to immediate execution; about correcting obvious arithmetic errors; on deferment and installment plan; about changing the order and method of execution; on the issuance by the court of a duplicate of the writ of execution and the court order; on indexation of awarded amounts of money; on the postponement of enforcement actions; on suspension of enforcement proceedings; on termination of enforcement proceedings; on holding a bank or other credit institution liable for failure to comply with judicial acts; on appealing the actions of the bailiff; about the reversal of execution of the decision, etc.

5. Court rulings made on applications for reconsideration of decisions based on newly discovered circumstances, as well as rulings on issues of canceling a default judgment, since they are associated with the possibility of the court that issued these court decisions to cancel its decision itself, without the intervention of higher courts.

6. Particular definitions are decided on issues beyond the scope of the dispute in this case. Having discovered violations of the law during the consideration of a civil case, the court has the right to make a ruling, which is sent to the relevant organizations and officials for them to take measures. An organization or an official is obliged to inform the court about the measures taken by them according to a private determination, in month period.

Content: When making private rulings regarding violations of the law, the court is obliged to indicate what exactly these violations are expressed in. When the causes and conditions conducive to the offense were the result of particularly serious violations and concern several organizations or officials, a private determination can be sent not only to a higher organization (official), but also to regulatory authorities. When informing by a private ruling about a violation of the law on the part of a specific official, the court, if necessary, must hear the explanations of such persons in court hearing. The court does not prejudge what kind of penalty should be imposed on the person in respect of whom a private ruling is made. In some cases, the court may not announce a private ruling in open court if premature disclosure of information about identified violations will make it difficult to eliminate them. But in this case, he announces to the persons participating in the case and the person concerned about the issuance of a private ruling. The announcement of a private ruling at a court hearing is indicated in the minutes. If, when considering a case, the court discovers signs of a crime in the actions of a party, other participants in the process, an official or another person, it informs the prosecutor about this.

Such determinations are entered into the minutes of the court session indicating: the issue on which the determination is made, the motives that guided the court (including references to laws), and the content of the determination itself (the operative part). The court ruling, which in form represents an independent procedural document, also indicates the time and place of the ruling, the name and composition of the court that issued the ruling, the name of the secretary of the court session, the persons participating in the case, and the subject of the dispute, as well as the procedure and deadline appealing the determination.

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

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

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

In the administration of justice, the court is a judicial authority vested with the authority to apply the norms of substantive and procedural law. The court puts all its actions in the form of judicial acts provided for by the procedural law, which is associated with the current requirements of the civil procedural form.

The court of first instance may issue judicial acts in the form court order, default judgment, decision and determination.

The determination, first of all, is the basis for the emergence, change or termination of procedural rights and obligations. Therefore, the dynamics of the development of civil procedural relations and the movement of civil cases are largely related to the issuance of court rulings.

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

In this course work the following particular problems need to be solved:

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

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

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

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

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

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

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

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

Chapter 1. Essence

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

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

Firstly, definitions are taken according to to a wide circle issues, they formalize all significant procedural actions performed by the court. As rightly noted, rulings resolve all issues related to the initiation of judicial proceedings, they record the main milestones of its development, and in some cases, the completion of proceedings in the case.

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

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

For example, the stage of preparation for consideration of a case and the procedure for reviewing a judicial act in the manner of supervision have changed significantly.

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

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

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

According to N.B. Zeider, court rulings made on individual private issues of the case do not provide an answer to the merits of the case being considered by the court.

These definitions resolve various individual issues that arose before the court when considering the case. Similar formulations are given by S.N. Abramov, M.A. Gurvich, K.S. Yudelson.

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

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

The ruling of the court of first instance has certain characteristics, among which are the following:

· determinations are made in the course of constitutional, civil, administrative proceedings;

· definitions are an act of expression of state will and are of a generally binding nature;

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

· depending on the impact on the judicial process, rulings can be preparatory, preemptive, final, signaling; It is necessary to separately highlight court rulings on applications for reconsideration of cases based on newly discovered circumstances, rulings on issues of canceling a default judgment;

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

· the court can make both rulings named and not named in the law;

· determinations are made by the court individually or collectively;

· determinations can be appealed, and in a special manner. Determinations may not be subject to independent appeal without challenging a judicial act issued on the merits of the dispute; determinations adopted in protocol form are not subject to appeal;

· determinations can be changed by the court that issued them, and can be subject to review only by appeal to a higher court. Procedural rulings may be changed by the court that issued them;

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

The peculiarity of court rulings is that they do not resolve the dispute on the merits and do not provide for the substantive rights and obligations of the parties to the dispute.

The determination resolves procedural issues, although in some cases the determinations provide for material rights and obligations Vitushkin V.A. Definitions Constitutional Court Russian Federation: features of legal nature. M.: NORM, 2005. P. 85. .

So, in accordance with Art. 108 of the Family Code of the Russian Federation “Family Code of the Russian Federation” dated December 29, 1995 No. 223-FZ (as amended on December 23, 2010) // “Collection of Legislation of the Russian Federation”, 01/01/1996, No. 1, Art. 16. in a case on the collection of alimony, the court has the right to make a ruling on the collection of alimony before the court decision on the collection of alimony enters into legal force; when collecting alimony for minor children - before the court makes a decision on collecting alimony. In these cases, a court ruling is made.

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

Scientific doctrine has not yet fully developed a definition of the concept in question in the entirety of its properties.

Consequently, in order to understand the content of the concept of “court ruling,” it is necessary to establish the types of determinations classified on one or another basis.

1.2 Types of rulings of the court of first instance

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

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

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

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

Malyshev lists the following as characteristics of private (preparatory) definitions. Firstly, such determinations, without resolving the matter on the merits, are included in the resolution of private, side questions arising in the course of legal proceedings. Secondly, the issuance of such a determination retains the possibility of resolving the dispute on the merits, or such determinations follow the court decision and contribute to its implementation.

Preparatory rulings can be made before the trial, during the trial, or after the adoption of the judicial act. These definitions include:

· determinations regarding the progress of the case (for example, a determination to leave the statement of claim without progress, to postpone the proceedings);

· determinations on the issues of attracting new participants to the process (for example, a determination on replacing an inappropriate defendant, on involving third parties);

· determinations on collecting evidence (on ordering an examination, on calling witnesses);

· determinations of a substantive nature (on securing a claim, on imposing a fine);

· determinations on the restoration of procedural deadlines, determinations on the execution of a judicial act (on deferment or installment plan for the execution of a judicial act).

These definitions do not affect the essence of the dispute, but relate to private issues arising during the proceedings.

The essence of preemptive rulings is that they impede the progress of the case. However, such determinations are not final, since the process can be continued in the future. Such determinations can be made before the start of the consideration of the case, when the court in a civil proceeding refuses to accept a statement of claim, for example, on the grounds that there is a decision on an identical claim that has entered into legal force (Article 134 of the Code of Civil Procedure of the Russian Federation “Civil Procedure Code of the Russian Federation” dated November 14 .2002 No. 138-FZ (as amended on December 23, 2010) // “Collection of Legislation of the Russian Federation,” November 18, 2002, No. 46, Article 4532.).

Preventive rulings are also adopted during the trial and impede the progress of the process, which can be continued only after the conditions that currently hinder the correct resolution of the case are eliminated. A. A. Vlasov. Civil process. M.: Yurayt, 2011. P. 217. . Unlike decisions, preemptive rulings do not affect the essence of the case, but only state the fact of procedural impossibility for various reasons to consider the case in court.

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

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

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

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

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

Apparently there are several reasons for this. Firstly, the power of the court is primarily to resolve the dispute quickly and correctly in accordance with the evidence presented by the parties.

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

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

Determinations regarding the decision made and its execution. Such definitions can clarify the meaning decision taken court, or clarify its contents and refer it for immediate execution, or ensure quick and effective execution of the judicial act. However, the court, with such determinations, does not have the right to re-decide the case on the merits, but can change the operative part.

The identification of such definitions as a separate type seems to be largely questionable, since such definitions still relate to preparatory definitions.

Court rulings on applications for reconsideration of cases based on newly discovered circumstances, rulings on issues regarding the cancellation of a default judgment. The peculiarity of these definitions is that they are associated with the right of the court to independently cancel its decision. Moreover, such determinations cannot be classified as either final or preemptive. It is also difficult to call such definitions preparatory, since they affect the essence of the dispute. Thus, their identification in separate species sufficiently justified.

R.E. Ghukasyan identifies the following types of determinations: preparatory, preemptive, final, on the implementation of the decision, private determinations (for civil proceedings) Civil procedural law Russia / Ed. M.S. Shakaryan. M.: Norma, 2008. P. 286. .

For the purposes that are ensured by making determinations, depending on the place in trial V.V. Yarkov identifies the following types of definitions:

· determinations made at the stage of initiating a case and preparing it for trial;

· determinations at the trial stage;

· determinations on the termination of proceedings in a case without making a decision, determinations related to the correction of shortcomings of the decision made. Civil procedure / Edited by V.V. Yarkov. M.: Wolters Kluwer, 2009. P. 261. .

Based on the form of issuance and recording, definitions are divided into two types. The first group of definitions is an entry in the minutes of a court hearing. These are the so-called protocol definitions. The second group consists of definitions issued in the form of a separate independent act. If a court ruling is recorded in the minutes of the court hearing, such a ruling does not contain an introductory part or an indication of the period and procedure for appealing, since these rulings do not block the progress of the case. The protocol determination does not have a strictly defined form, but it must contain the issue being resolved by the court, the reasons and the resolution of the court.

The motives for the determination should be understood as its factual and legal grounds. The operative part of the ruling is a statement of the content of the procedural action that the court formalizes as a ruling. Such determinations are made without the judges being removed to the deliberation room.

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

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

Determinations can be changed by the court that made them, and can be subject to revision only by way of appeal to higher judicial authorities.

The court has the power to change the ruling if following conditions:

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

· circumstances must change so much that the previously valid court resolution does not meet the requirements for a speedy and correct resolution of the dispute.

Preventive and final rulings are subject to review only by way of appeal.

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

Chapter 2. Characteristicsrulings of the court of first instance

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

The procedure (procedure) for making a determination may vary. By general rule The court's ruling, like a judicial decision, is made in the deliberation room. Before retiring to the deliberation room, the court must seek the opinion of the persons participating in the case regarding the content of the ruling to be made.

If the case is considered collectively, then the court makes a ruling in the manner prescribed by Part 1 of Art. 15 of the Code of Civil Procedure: all issues arising during the consideration of the case are resolved by the judges by a majority vote; none of the judges has the right to abstain from voting; The presiding officer votes last.

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

Determinations made by the court at a court hearing without moving to the deliberation room are subject to entry into the minutes of the court session and, in cases of refusal to satisfy the stated petition, must contain the reasons for the decision made.

Regardless of the order in which the court ruling is made - in the deliberation room or without being removed to the deliberation room, the ruling must be immediately announced after it is issued by the court. This rule is related to the essence of procedural issues that are resolved by judicial decisions and determine the further movement of the entire civil case. Thus, by the decision of the magistrate of the 242nd judicial district of the Serpukhov judicial district dated February 9, 2006 and an additional decision of the same magistrate dated February 15, 2006, the claims were partially satisfied. By the ruling of the magistrate dated April 11, 2006, N.’s application to restore the deadline for filing appeal left unsatisfied. The appeal ruling of the Serpukhov City Court dated June 7, 2006 canceled the above-mentioned ruling of the magistrate and N. restored the deadline for appealing the decision of the trial court.

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

IN supervisory complaint lawyer Z. raises the question of canceling the private ruling as it was made in significant violation of the norms of procedural law.

By the ruling of Judge Moskovsky regional court Verdiyana G.V. on April 24, 2007, the case was transferred for consideration on the merits to the court of supervisory authority - the Presidium of the Moscow Regional Court.

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

Having checked the case materials and discussed the arguments of the supervisory appeal, the presidium finds the court’s private ruling subject to cancellation.

According to Part 1 of Art. 226 of the Code of Civil Procedure of the Russian Federation, if cases of violation of the law are identified, the court has the right to make a private ruling and send it to the relevant organizations or relevant officials, who are obliged to report within a month about the measures they have taken. Within the meaning of Part 1 of Art. 224 of the Code of Civil Procedure of the Russian Federation, decisions of the court of first instance, which do not essentially resolve the case, are made in the deliberation room. Meanwhile, from the minutes of the court hearing dated July 25, 2006, it follows that the appellate court did not go into the deliberation room to make a private ruling.

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

However, the time for consideration of another case referred to by the court goes beyond the scope of consideration of the case on the claim of GSK-1 “Soyuz” against N. for the collection of debt for the maintenance of the garage and interest for the use of other people’s funds. This circumstance also indicates that the private ruling in the present case was made outside the deliberation room and more late date.

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

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

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

The period assigned for reconciliation may be reduced if the parties request it, and the reasons given by them are recognized by the court as valid. In these cases, a reasoned determination must be made. The court's ruling to postpone the hearing of the case to reconcile the spouses cannot be appealed in cassation, because it does not impede the further progress of the case.

legal court of first instance

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

The law imposes certain requirements on the content of a court ruling. The court's written ruling must consist of introductory, descriptive, motivational and operative parts.

The ruling, which is made in the deliberation room, must indicate the time and place of the ruling, the composition of the court, and the secretary of the court session. If a prosecutor and a representative participated in the case, then the definition must indicate these participants in the process.

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

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

Thus, V. filed a claim with the Dzerzhinsky District Court of St. Petersburg against LLC CB Renaissance Capital with demands to invalidate the terms of the loan agreement concluded between V. and LLC CB Renaissance Capital.

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

In returning the statement of claim, the court of first instance proceeded from the fact that the parties do not have the right to change the exclusive and generic (subject matter) jurisdiction, which is determined by law. Civil procedural legislation does not contain any other restrictions. An agreement on jurisdiction can be included in a civil contract, including a contract of adhesion. In accordance with clause 12.2 of the General Conditions for Granting a Loan, all disputes between the parties are subject to resolution in accordance with the legislation of the Russian Federation in a court of general jurisdiction at the location of the Bank. The agreement determines contractual jurisdiction.

Guided by the principle of discretion in civil proceedings, the parties, taking advantage of the right to choose between several courts, voluntarily determined territorial jurisdiction for all cases related to the execution of contracts, including this dispute. Such an agreement between the parties does not constitute any restriction on the rights of the parties and does not deprive the parties of the right to legal protection. Since the agreement of the parties on determining territorial jurisdiction, reached on the basis of Art. 32 of the Code of Civil Procedure of the Russian Federation is mandatory not only for the parties, but also for the court, then the Dzerzhinsky District Court of St. Petersburg does not have any grounds provided for by law for accepting the statement of claim, and the claim is not subject to consideration in the Dzerzhinsky District Court of St. Petersburg. The panel of judges cannot agree with the conclusion of the trial court.

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

According to paragraph 5 of Art. 225 of the Code of Civil Procedure of the Russian Federation, the court's ruling must indicate the reasons why the court came to its conclusions and a reference to the laws that guided the court.

In such circumstances, given that the case materials do not contain both the disputed loan agreement and General terms granting a loan, judicial panel deprived of the opportunity to assess the legality of the decision made by the district court to return B’s statement of claim. In this situation, the court’s decision cannot be recognized as legal and justified, and is subject to cancellation with the transfer of materials on the statement of claim to the court of first instance for consideration from the stage of acceptance.

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

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

The panel of judges, having studied the materials on the statement of claim and discussed the arguments of the private complaint, considers the court's ruling subject to cancellation.

Leaving the statement of claim of Baltic Investment Bank OJSC without progress, the court referred to the fact that it was filed without complying with the requirements established by Art. 132, paragraph 2 of Art. 71 of the Code of Civil Procedure of the Russian Federation, since the plaintiff did not indicate the originating number of the statement of claim sent to the court on behalf of legal entity, and also, duly certified copies of the documents specified in the statement of claim and confirming the circumstances on which the plaintiff bases his claims have not been submitted; a properly executed power of attorney of the person who signed the statement of claim on behalf of OJSC BaltInvestBank has not been submitted.

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

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

In addition, at a meeting of the judicial panel, the plaintiff’s representative explained that when filing a statement of claim in court, he was provided with a genuine power of attorney confirming his authority.

Taking into account the above, the judicial panel finds the ruling subject to cancellation.

The operative part must contain clear and concise conclusions of the court on the issue being resolved. So, for example, when the proceedings in the case are adjourned, the date and time for which the hearing of the case is scheduled must be indicated. The Code of Civil Procedure establishes some features of the content of definitions. So, for example, a court ruling on a letter of request must briefly outline the content of the case under consideration and indicate information about the parties, their place of residence or location, as well as contain circumstances to be clarified; evidence that must be collected by the court carrying out the instructions of the court (part 2 of article 62 of the Code of Civil Procedure); in the ruling on the return of the statement of claim, the court indicates which court the applicant should apply to if the case is not within the jurisdiction of this court, or how to eliminate the circumstances that impede the initiation of the case (Part 2 of Article 135 of the Code of Civil Procedure); the court's ruling on ordering an additional or repeat examination must set out the reasons for the court's disagreement with the previously given conclusion of the expert (experts) (Part 3 of Article 87 of the Code of Civil Procedure). If the court disagrees with the expert’s conclusion, it can be expressed in a court ruling ordering an additional or repeat examination (Part 2 of Article 187).

The determination on preparing the case for trial must indicate the actions that should be taken by the parties, other persons participating in the case, as well as the timing of these actions to ensure the correct and timely consideration and resolution of the case (Part 1 of Article 147 of the Code of Civil Procedure); The court's ruling on approval of the settlement agreement between the parties must indicate the motives for the concluded settlement agreement, and must also contain an instruction to terminate the proceedings. The court's ruling on termination of proceedings in the case must necessarily indicate that a repeated appeal to the court in a dispute between the same parties, about the same subject and on the same grounds is not allowed (Article 221 of the Code of Civil Procedure).

The Resolution of the Plenum of the Supreme Court of the Russian Federation dated January 20, 2003 No. 2 “On some issues that arose in connection with the adoption and enforcement of the Civil Procedure Code of the Russian Federation” states that, according to Part 4 of Art. 22 of the Code of Civil Procedure of the Russian Federation, a case in which several related claims are presented, some of which are within the jurisdiction of a court of general jurisdiction, and others of an arbitration court, is subject to consideration and resolution in a court of general jurisdiction; if the separation of these claims is impossible, the judge makes a ruling on the acceptance of the claims within the jurisdiction to a court of general jurisdiction, and on the refusal to accept claims within the jurisdiction of the arbitration court.

Very important is the provision on the content of the court’s ruling, issued in the event that when filing an application or considering a case in a special proceeding, it is established that there is a dispute about the law within the jurisdiction of the court, the court issues a ruling to leave the application without consideration, in which it explains to the applicant and other interested parties persons have the right to resolve the dispute through litigation.

In cases of declaring a citizen incompetent, the court, if the citizen against whom the case has been instituted, clearly refuses to undergo an examination in a court hearing with the participation of a prosecutor and a psychiatrist, may issue a ruling in which it indicates the need to compulsorily send the citizen for a forensic psychiatric examination (Art. 283 Code of Civil Procedure).

The content of the definition regulating the actions of the judge after accepting an application to invalidate lost bearer securities or order securities and to restore rights under them is important for the correct consideration of cases of summons proceedings.

The determination must contain an instruction prohibiting the person who issued the document from making payments or issuances on it, and also indicate the obligation to publish certain information in a local periodical at the applicant’s expense (Article 296).

The court's ruling to initiate proceedings on a new claim due to the loss of legal proceedings must necessarily reflect this particular circumstance (Article 316 of the Code of Civil Procedure).

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

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

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

Conclusion

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

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

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

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

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

From all of the above, it is necessary to formulate the following conclusions.

A ruling by a trial court is a type of ruling by a trial court or judge that does not decide the case on its merits.

The definitions have the same features as all decisions of the trial court.

Judicial rulings express the diverse administrative activities of the court.

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

Based on this criterion, six types of judicial rulings can be distinguished: rulings that end the process with a settlement of the dispute; determinations that prevent the initiation of a process or terminate it without resolution or settlement of the dispute (preventive determinations); rulings ensuring the normal course of the process until the case is resolved by the court of first instance (preparatory rulings); determinations regarding the decision made and its execution; A special position is occupied by court rulings made on applications for review of decisions based on newly discovered circumstances, as well as rulings on issues of reversing a default judgment, since they are associated with the possibility of the court that issued these court decisions, itself, without the intervention of higher courts, to cancel its decision ; private determinations are made on issues that go beyond the scope of the dispute in a given case.

Determinations are made by the court, usually in a deliberation room, in the same manner as the decision. When resolving simple issues, the court can make a ruling after a meeting on the spot, without retiring to the deliberation room. Such determinations are entered into the minutes of the court session indicating: the issue on which the determination is made, the motives that guided the court (including references to laws), and the content of the determination itself (the operative part).

In theory and practice of application legal norms regulating the issues of issuing, maintaining, appealing, and executing court decisions, there are problems. The important thing is that from the right approach The resolution of these issues often depends on the issuance of a lawful and justified judicial act on the merits of the dispute.

Bibliography

Normative legal acts:

1. “The Constitution of the Russian Federation”, adopted by popular vote on December 12, 1993, published in Rossiyskaya Gazeta, No. 237, December 25, 1993 (taking into account amendments introduced by the Laws of the Russian Federation on amendments to the Constitution of the Russian Federation dated December 30, 2008 No. 6-FKZ, dated 12/30/2008 No. 7-FKZ) // “Collection of Legislation of the Russian Federation”, 01/26/2009, No. 4, Art. 445.

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

3. “Family Code of the Russian Federation” dated December 29, 1995 No. 223-FZ (as amended on December 23, 2010) // “Collection of Legislation of the Russian Federation”, 01/01/1996, No. 1, Art. 16.

Arbitrage practice:

1. Ruling of the St. Petersburg City Court dated 02/08/2010 No. 1471 “The absence in the court’s ruling of the motives on which the court came to the conclusion that the case does not have jurisdiction over this court, in particular, the absence of the disputed loan agreement itself, containing conditions on contractual jurisdiction, is the basis its cancellation and return of the claim for consideration from the acceptance stage” // SPS Consultant Plus.

2. Ruling of the St. Petersburg City Court dated October 19, 2009 No. 13663 “The court ruling on leaving the application without progress in terms of indicating the need to submit a duly executed power of attorney of the person who signed the statement of claim does not comply with the requirements of Article 225 of the Civil Procedure Code of the Russian Federation, since does not contain the reasons why the court came to its conclusions or references to the laws that guided the court” // SPS Consultant Plus.

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

4. Resolution of the Plenum of the Supreme Court of the Russian Federation dated January 20, 2003 No. 2 “On some issues that arose in connection with the adoption and enforcement of the Civil Procedure Code of the Russian Federation” (as amended on February 10, 2009) // “ Russian newspaper", No. 15, 01/25/2003.

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

6. Resolution of the Plenum of the Supreme Court of the Russian Federation dated 09/17/1975 No. 5 “On compliance by the courts of the Russian Federation with procedural legislation during the trial of criminal cases” (as amended on 02/06/2007) // “Collection of Resolutions of the Plenum of the Supreme Court of the Russian Federation 1961 - 1993”, M ., “Legal Literature”, 1994.

Monographs and textbooks:

1. Bezrukov A.M. Prejudicial connection of judicial acts. M.: Wolters Kluwer, 2007. P. 144.

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

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

4. Civil process: Textbook / E.A. Borisova, S.A. Ivanova, E.V. Kudryavtseva and others; edited by M.K. Treushnikova. M.: Gorodets, 2010. P. 784.

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

6. Civil process / Edited by V. V. Yarkov. M.: Wolters Kluwer, 2009. P. 784.

7. Civil process: Textbook / D.B. Abushenko, V.P. Volozhanin, S.K. Zagainova et al.; edited by V.V. Yarkova. M.: Wolters Kluwer, 2004. P. 720.

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

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

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

11. Civil proceedings course. T. 1 / Malyshev K. S.-Pb.: Type. MM. Stasyulevich, 1876. P. 454.

12. Lebedev M. Yu. Civil process. M.: Yurait, 2011. P. 400.

13. Arbitration court rulings. Practice of acceptance and revision / Kallistratova R.V., Patsatsiya M.Sh., Prikhodko I.A.; Rep. ed.: Kallistratova R.F.; Preface: Arifulina A.A. M., 2003. P. 308.

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

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

16. Russian civil proceedings: Claim proceedings. Practical guide for students and aspiring lawyers. T. 1 / Comp.: Isachenko V.L. Minsk: Typo-lithogr. B.I. Solomonova, 1901. P. 582.

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

18. Soviet civil procedural law. Tutorial/ Akselrod S.S., Gurvich M.A., Dobrovolsky A.A., Kurylev S.V., et al.; Edited by: Gurvich M.A. M.: Publishing house VYUZI, 1957. P. 370.

19. Court decision / Avdyukov M.G. M.: Gosyurizdat, 1959. P. 192.

20. Judgment in a civil case / Zeider N.B. M.: Legal. lit., 1966. P. 192.

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

22. Textbook of civil procedure / Vaskovsky E.V.; Edited by, with a foreword: Tomsinov V.A. M.: Zertsalo, 2003. P. 464.

23. Chechot D.M. Selected works on civil procedure. SPb: Publishing house. House of St. Petersburg University, 2005. P. 616.

Periodicals:

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

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

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§8. ruling of the court of first instance

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

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

The rulings made by the court of first instance are very diverse in content.

Some of them formalize the actions of persons participating in the case in the exercise of procedural rights and fulfillment of duties, as they contain responses to petitions for recusals (Article 17, 21 of the Code of Civil Procedure), for the inclusion of written evidence (Article 69 of the Code of Civil Procedure), and ordering an examination (Article 74 of the Civil Procedure Code), calling witnesses, securing evidence (Article 58 of the Code of Civil Procedure); others formalize the actions of the court (judge) - refusal to accept an application (Article 129 of the Civil Procedure Code), suspension of proceedings (Article 214 of the Code of Civil Procedure), as well as the admission of certain persons to participate in the process (Articles 34, 37 of the Code of Civil Procedure) .

Based on the nature of the procedural impact on the course of legal proceedings, rulings can be divided into two groups: preparatory and preemptive, which block further progress of the case.

The first group of definitions is characterized by the fact that it resolves certain procedural issues during the proceedings of the case, formalizes the actions of the court and persons participating in the process. They do not change the course of the process. These are, for example, definitions on securing a claim, requesting evidence, postponing and installment execution of decisions.

Determinations of the second group - preemptive - are issued in cases established by the law itself: determinations to refuse to accept a statement of claim (Article 129 of the Code of Civil Procedure), to suspend proceedings in the case (Articles 214, 215 of the Code of Civil Procedure), to leave the application without consideration ( Article 221 of the Code of Civil Procedure), on the termination of proceedings in the case (Article 219, Code of Civil Procedure).

These determinations temporarily or permanently block further progress of the case, which is why they are called preemptive. The ruling on termination of the proceedings ends trial and therefore in the literature they are sometimes called final definitions.

An independent group of definitions consists of the so-called special or particular ones - they carry informative information and are sometimes called signaling ones. With the help of private rulings, the court does not resolve issues related to the merits of the case.

Private court rulings. If cases of violation of the law are identified at a court hearing, the court has the right (may) to make a private ruling and send it to the relevant organizations or officials, who are obliged to report within a month about the measures they have taken. Art. 225 of the Code of Civil Procedure, regulating the possibility and procedure for making private determinations, does not establish liability for failure to take measures on a private determination, therefore, at present, the effectiveness of private determinations is extremely low. The Code of Civil Procedure should provide that officials guilty of failure to take measures prescribed by the court may be subject to a fine, but the imposition of a fine does not relieve the relevant persons from the obligation to take measures taken according to a private determination.

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

Issuing private rulings is one of the forms of educational influence of the court on citizens in the struggle to strengthen the rule of law and prevent crime.

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

The procedure for making determinations. Determinations can be made by the judge and the court at any stage of the civil process. Their content is stated either in the form of a separate procedural document or entered into the minutes of the court session. A judge, acting on behalf of the court, may make rulings individually in cases provided for by the Code of Civil Procedure. The remaining determinations are made by the court in the deliberation room.

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

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

Most rulings during a court hearing (except for the listed cases) are made by the court, conferring on the spot.

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

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

Determinations made in the deliberation room are set out in a separate procedural document and signed by the entire court. Each judge has the right to a separate opinion. Determinations are announced immediately after they are made. They must contain a complete and substantiated answer to the question being resolved. Each ruling that satisfies the request of the persons participating in the process or refuses to satisfy it must be motivated and have the details listed in Art. 224 Code of Civil Procedure.

The ruling made by the court in the deliberation room shall indicate:

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

b) the exact and full name of the court, information about the composition of the court and the secretary of the court;

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

d) the issue on which the determination is made. For example, the question of requesting or introducing new evidence, terminating proceedings due to lack of jurisdiction, etc.;

e) an analysis of the opinions of the persons participating in the case, a reasoned opinion of the court on the issue being resolved, a reference to the law that guided the court;

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

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

The logical continuation of the descriptive part is the motivational part, containing a link to the article of the law. The motivation for the determination makes it possible to check the progress of the formation of the judicial conviction, to understand what the court identified and ruled and why it did it, i.e. analysis of the facts established by the court in the manner and with the help of evidence established by law allows the higher court to be convinced of the legality and validity of the determination through a cassation review or review in the manner of judicial supervision.

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

The rulings that end the proceedings enter into legal force and have all the qualities that make up the latter. For example, a determination to terminate proceedings by a settlement agreement:

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

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

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

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