Clarifications of the Supreme Court are obligatory vessels. Explaining the Supreme Court of the Russian Federation on judicial practice. The court is not obliged to follow the position of the Armed Forces of the Russian Federation set out in a concrete decision

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Plenum of the Supreme Court of the Russian Federation

On the preparation of civil cases for legal proceedings

Compliance with the requirements of the law on adequate training for civil cases to the trial is one of the main conditions for the right and timely permit. Nebros or formal preparation of cases for trial, as a rule, leads to the deposition of a trial, Volokut, and in some cases to the adoption of unreasonable decisions.

In order to ensure the correct and uniform application of legislation governing civil cases to the court proceedings, the Plenum of the Supreme Court of the Russian Federation decides to give the following clarifications to the courts:

1. In accordance with the Civil Procedure Code of the Russian Federation (hereinafter - the Code of Civil Procedure of the Russian Federation), the courts of the Russian Federation are entitled to start judicially consideration of civil cases only after fulfilling all the necessary actions to prepare for the judicial proceedings provided for by Chapter 14 of the Code of Civil Procedure of the Russian Federation.

To draw the attention of the courts to the fact that the preparation of cases for legal proceedings is an independent stage of a civil procedure, which is intended to ensure proper and timely consideration and permission, and is obligatory for each civil case (article 147 of the Code of Civil Procedure of the Russian Federation).

Timely and complete preparation of the case for legal proceedings is of determining importance for the qualitative consideration of the case in the deadlines established by law.

2. The judge has the right to proceed with the preparation of a trial only after the initiation of civil affairs in court and making a definition about the adoption of a statement to the production of the court (article 133 of the Code of Civil Procedure of the Russian Federation).

It is unacceptable to perform actions to prepare a case for trial before its initiation in court (before accepting a statement), since such actions contradict the provisions of Article 147 of the Code of Civil Procedure of the Russian Federation.

According to the provisions of chapter 12 of the Code of Civil Procedure of the Russian Federation, the use of articles 134 (refusal to accept the application), 135 (the return of the application), 136 Code of Civil Procedure of the Russian Federation (leaving the statement without movement) is possible only in the stage of initiating civil affairs. After completing this stage, the application of the provisions enshrined in the following articles is not provided in the preparation.

3. After the application of the judge in accordance with Article 147 of the Code of Civil Procedure of the Russian Federation, it is obliged to make a definition of the preparation of a case to trial, indicating specific actions to the Parties and other persons participating in the case, as well as the timing of these actions. The definition also indicates the actions of the judge itself at this stage of the process.

Such a definition should be issued and in case of need for additional actions to prepare a case for a trial after the cancellation of the court decision and the direction of the case for a new consideration or after the resumption of suspended proceedings.

4. The ships should be borne in mind that each of the tasks of preparing a case for the trial listed in Article 148 of the Code of Civil Procedure of the Russian Federation is a mandatory element of this process stage. Failure to comply with any of the tasks can lead to unreasonable tightening of the trial and judicial error.

5. Under the refinement of circumstances that are important for the right permission of the case, the actions of the judge and persons participating in the case should be understood by the definition of legal facts underlying the requirements and objections of the Parties, taking into account the nature of the controversial relationship and the norms of the material law to be applied.

In case of delusion of the parties regarding the facts of legal importance, the judge on the basis of the norms of the material law to be applied explains to them what facts are important for business and on whom lies the duty of their proof (article 56 of the Code of Civil Procedure of the Russian Federation).

6. When determining the law and other regulatory legal act, which should be guided in resolving the case, and the establishment of the relations of the Parties should be borne in mind that they should be determined on the basis of a set of data: subject and basis of the claim, the defendant's objections regarding the claim, other circumstances having Legal importance for the right permission of the case.

Since the basis of the claim is the actual circumstances, the indication of the claimant of a specific legal norm in the justification of the claim is not determining when deciding the question of how law should be guided by the permit.

7. When performing a task associated with the submission of the necessary evidence, the judge takes into account the features of its position in the contestant process. The judge is obliged already under the preparation of the case to create conditions for a comprehensive and complete study of the circumstances that are important for the right permission of the case. The evidence is represented by the parties and other persons involved in the case, but taking into account the nature of the legal relations of the Parties and the norm of the material law regulating the controversial legal relations. The judge explains, on whom lies the duty of proving certain circumstances, as well as the consequences of failure to provide evidence. At the same time, the judge must find out what evidence the parties can confirm their allegations, what difficulties are available to submit evidence, it is advised that at the request of the parties and other persons participating in the case, the court assists in collecting and exercising evidence (part 1 of article 57 of the Code of Civil Procedure of the Russian Federation ).

8. The evidence submitted by the parties and other persons participating in the case is checked by the judge on their attributes (article 59 of the Code of Civil Procedure of the Russian Federation) and the admissibility (Article 60 of the Code of Civil Procedure of the Russian Federation).

The judge follows in all cases to offer the parties to indicate which circumstances can be confirmed by these evidence. The adoption of evidence that cannot be the means of proving (in particular, the testimony of witnesses in accordance with Part 1 of Article 162, part 2 of Article 812 of the Civil Code of the Russian Federation), is unacceptable.

9. In the preparation of the case, the judge is obliged to clarify the parties of part 1 of article 68 of the Code of Civil Procedure of the Russian Federation that if the party is obliged to prove his demands or objections, he keeps the evidence from it and does not submit them to the court, the court has the right to substantiate its findings with explanations of the other party.

With the failure of the defendant, the judge sends documents at his place of residence and proposes to submit to the established period of evidence to substantiate its objections. The judge also explains that the defendant's failure to provide the defendant and objections to the deadline established by the judge does not impede the consideration of the case of evidence (part 2 of article 150 of the Code of Civil Procedure of the Russian Federation).

10. To draw the attention of the courts to the fact that, by the meaning of articles 4, 45, 46, 47, 56, 57 of the Code of Civil Procedure of the Russian Federation, the obligation of proof lies on the parties, third parties that declare independent requirements on the subject of the dispute, at the prosecutor, organs, organizations and Citizens who submitted an application for other persons.

According to the establishment of facts that have the legal importance considered in the order of special production, the applicants are the obligation to bring evidence confirming the impossibility of obtaining appropriate documents or the impossibility of restoring the lost documents (article 267 of the Code of Civil Procedure of the Russian Federation).

For special production, it is not excluded by the right of court to refine the necessary evidence on their own initiative (part 1 of article 272 of the Code of Civil Procedure of the Russian Federation).

11. Having established that the proof presented insufficiently confirms the requirements of the plaintiff or the respondent's objection or do not contain other necessary data, the judge has the right to offer them to submit additional evidence, and in cases where the submission of such evidence for these people is difficult, according to their petition to the requirements of Part 2 Articles 57 of the Code of Civil Procedure of the Russian Federation, assists in collecting and exercising from organizations and citizens, in particular, written and physical evidence (part 1 of article 57, paragraph 9 of part 1 of article 150 of the Code of Civil Procedure of the Russian Federation).

12. Considering that in accordance with Article 64 of the Code of Civil Procedure of the Russian Federation, providing evidence is made in court from the moment of initiating the case in court, the judge has the right to take measures to ensure and in the preparation of a case for trial. It should be borne in mind that the circle of evidence that can be provided, the law is not limited (Articles 64 - 66 Code of Civil Procedure of the Russian Federation).

13. The judge is entitled, taking into account the opinion of those involved in the case of persons, it is necessary to appoint an examination (medical, accounting and other) to judicial proceedings in all cases where the need for an expert opinion follows from the circumstances of the case and presented evidence (paragraph 8 of part 1 of article 150 Code of Civil Procedure of the Russian Federation ). When appropriate, the examination should take into account the requirements of Articles 79 - 84 Code of Civil Procedure of the Russian Federation, and the persons participating in the case should clarify their right to put on an expert questions on which the conclusion should be given.

It should be borne in mind that in accordance with Article 79 of the Code of Civil Procedure of the Russian Federation, only those questions that require special knowledge in various fields of science, technology, art or craft can be delivered to the permission of expertise. The statement of the expert (experts) of legal issues, the permission of which relates to the competence of the court (for example, the issue of the capacity of a citizen, and not about the nature of its disease).

In all cases, when, according to circumstances, it is necessary to find out the mental state of the person at the time of the commission of a certain action, a forensic psychiatric examination should be appointed, for example, when considering the recognition of invalid transactions on the motive of their citizen who cannot understand the significance of their actions or To manage them (Article 177 of the Civil Code of the Russian Federation), as well as in cases where the appointment of expertise is provided for by law, in particular, on cases of recognition of a citizen incapacitated due to a mental disorder (Article 283 of the Code of Civil Procedure of the Russian Federation) and recognition of it capable in the event of recovery or significant improvement health states (part 2 of article 286 Code of Civil Procedure of the Russian Federation). When appointing expertise in the preparation of the case for a judicial proceedings, in accordance with Article 216 of the Code of Civil Procedure of the Russian Federation, it is entitled to suspend the proceedings. In this case, the course of the production period in the case according to part 1 of article 110 of the Code of Civil Procedure of the Russian Federation is suspended. The definition of the suspension of the proceedings in the case of the judge is submitted in a preliminary court session, which includes a protocol (part 4 and 7 of Article 152 of the Code of Civil Procedure of the Russian Federation).

14. A specialist (paragraph 8 of part 1 of article 150 of the Code of Code of the Russian Federation) can be brought at the stage of preparing a case to the court proceedings to participate in civil engagement. The need to attract this participant in the process may arise from the court to obtain consultations, explanations and direct technical assistance in the inspection of written and material evidence, listening to audio recordings, watching video recording, the appointment of examination, interrogation of witnesses, taking measures to ensure evidence (article 188 of the Code of Civil Procedure of the Russian Federation).

15. According to the principle of dispositionability, the party has the right to finish the work of the case in the preparation of the case to the judicial proceedings. If the actions of the parties do not contradict the law and do not violate the rights and the interests protected by law of others, the goals of civil proceedings are achieved in the most economical way. Taking into account this, the task of the judge is: in clarifying the parties the advantages of the end of the case. In explaining that, according to its legal strength, the definition of the statement of the settlement agreement is not inferior to the court decision and, if necessary, is also subject to compulsory execution; In compliance with the procedure for approving the settlement agreement.

At the same time, the verification of the conditions of the settlement agreement concluded by the Parties and the procedural consolidation of the respective judgments in the preliminary court session (Article 152 of the Code of Civil Procedure of the Russian Federation) is important. The conditions of the settlement agreement are recorded in the minutes of the court session and are signed by both parties, and if the settlement agreement is expressed in a written statement to the court, it is attached to the case, which is indicated in the Protocol (part 1 of article 173 of the Code of Civil Procedure of the Russian Federation).

The judge clarifies the parties to the consequences of the conclusion of the settlement agreement, in accordance with which the proceedings are terminated and re-appealing to the court on the dispute between the same parties, the same subject and on the same grounds are not allowed (part 2 and 3 of Article 173, Article 221 of the Code of Civil Procedure RF).

The definition of the termination of the proceedings after consideration of the judge of the question in the preliminary meeting should be submitted in the deliberate room. It should provide appropriate motives and set out the conditions of the settlement agreement, as well as the consequences of termination of the proceedings (part 4 and 5 of Article 152, article 221 of the Code of Civil Procedure of the Russian Federation).

16. In cases where the dispute may be transferred to the Arbitration Court, the judge is obliged to clarify the right to enter into an agreement on the transfer of a dispute to the permission of the Arbitration Court, as well as the essence of the arbitration method of resolving the dispute, the procedure for executing the decision of the Arbitration Court.

The judge must also explain that the claim in this case in accordance with Part 4 of Article 152 of the Code of Civil Procedure of the Russian Federation will be left without consideration, and after making a decision by the Arbitration Court to appeal to the court with a statement on the dispute between the same parties, about the same subject and The bases are not allowed (paragraph 3 of Part 1 of Article 134 of the Code of Civil Procedure of the Russian Federation).

On the leaving of the claim without consideration in connection with the conclusion of the parties to the agreement on addressing the dispute resolution into the Arbitration Court of Judge after the preliminary court session, a definition shall be deducted (part 5 of article 152 of the Code of Civil Procedure of the Russian Federation). At the same time, a protocol is drawn up on the court session (part 7 of article 152 of the Code of Civil Procedure of the Russian Federation) and the relevant written documents confirming the commission of all necessary procedural actions are involved.

17. To draw the attention of the courts to the fact that the composition of persons participating in the case is listed in Article 34 of the Code of Civil Procedure of the Russian Federation. The possibility of the participation of certain persons in the process on a specific case is determined by the nature of the controversial relationship and the presence of logistical interest. Therefore, the determination of a possible circle of persons who should participate in the case begins with the analysis of legal relations and the establishment of specific carriers of rights and obligations. Taking into account the specific circumstances of the case, the judge permits the issue of the composition of persons participating in the case, that is, the parties, third parties - on cases considered in accordance with the procedure for claim; Applicants interested persons - on special production and on cases arising from public relations, as well as on participants who promote the consideration of the case - representatives of the parties and third parties, experts, specialists, translators, witnesses.

It should be borne in mind that a number of subjects from those listed in Article 34 of the Code of Civil Procedure of the Russian Federation do not have in the case of logistical interest, but have only procedural interest on its outcome (prosecutor, government bodies, local governments), but they are expected by law Persons involved in the case, which must be taken into account when resolving the issue of the composition of those involved in the case.

18. According to Article 149 of the Code of Civil Procedure of the Russian Federation, except for the Parties or their representatives in the preparation of a case, other persons participating in the case, in particular third parties, who declare independent requirements for the subject of the dispute may be carried out. Persons speakers on their own behalf in defense of the rights, freedoms and legitimate interests of other persons, namely the prosecutor, government bodies, local governments, organization or citizens (Articles 4, 45, 46 Code of Civil Procedure of the Russian Federation). For example, along with a person, in the interests of which the case was launched and which participates in it as the plaintiff (part 2 of Article 38 of the Code of Civil Procedure of the Russian Federation), the person should participate in the implementation of Article 149 of the Code of Civil Procedure of the Russian Federation, on which the case was initiated.

When contacting the court of prosecutor, state authorities, local governments, organizations or citizens to protect the rights, freedoms and legitimate interests of other persons, an indefinite circle of persons or interests of the Russian Federation, subjects of the Russian Federation, municipalities (articles 45, 46 Code of Civil Procedure of the Russian Federation) The prosecutor, government bodies and other persons who are given the right to protect the interests of others, participate in the preparation of the case for trial and judge clarifies them their rights and obligations in the process. These persons who addressed in defense of the interests of other persons enjoy all procedural rights and carry all the procedural responsibilities of the plaintiff, with the exception of the right to conclude a settlement agreement. In addition, they are exempt from the obligation to carry court costs.

19. The judge in the course of preparation explains to persons participating in the case, their right to deal with representatives, as well as the procedure for executing the powers of representatives, checks the amount of these powers if they are decorated, meaning that the right to make a representative of the actions provided for in Article 54 Code of Civil Procedure of the Russian Federation should be specifically specifically stipulated as a power of attorney, since it is connected with the order of the material and procedural rights of the principal.

On cases affecting the rights and interests of minors who have not reached the age of fourteen years, as well as citizens recognized by the court incapable or limitedly capable, judge during the preparation checks the age of a minor, the presence of a court decision on the recognition of citizens is incapable or on restricting citizens in legal capacity, and Also, the powers of their legal representatives: parents, adoptive parents, guardians, trustees or other persons who are provided by federal law (Article 52 of the Code of Civil Procedure of the Russian Federation).

For cases affecting the rights and interests of minors aged from fourteen to eighteen years, as well as citizens limited in legal capacity, the judge attracts these persons to participate in the case (part 3 of Article 37 of the Code of Civil Procedure of the Russian Federation).

If the case was initiated at the request of a minor face aged from fourteen to eighteen years, in cases stipulated by the Federal Law, on cases arising from civil, family, labor, public and other legal relations, the judge should discuss the need to attract to participate in legal representatives of a minor: parents, adoptive parents, trustees (part 4 of article 37 Code of Civil Procedure of the Russian Federation).

The judge attracts to participate in the case of the appropriate body of guardianship and guardianship, if, by virtue of the law, this case is subject to consideration with the participation of the representative of the guardianship body and guardianship, for example, for adoption of a child (article 273 of the Code of Civil Procedure); The restriction of the capacity of a citizen, about the recognition of a citizen incapacitated, on the restriction or on the deprivation of a minor aged from fourteen to eighteen years of age to independently dispose of its earnings, scholarships or other income (part 1 of article 284 of the Code of Civil Procedure of the Russian Federation); On the declaration of a minor fully capable (Article 288 of the Code of Civil Procedure of the Russian Federation).

In the absence of a defendant, the place of residence of which is unknown, the judge appoints such a respondent of the representative in the order of Article 50 of the Code of Civil Procedure of the Russian Federation, which it is necessary to make a definition, as well as send it to the appropriate law education.

20. Since persons participating in the case are enjoyed by rights and carry duties not only when considering the case, but also when preparing it for legal proceedings, the judge in order to ensure the most complete, comprehensive and objective study of the case should clarify to all persons participating in the case, Their rights and obligations provided for in Article 35 of the Code of Civil Procedure of the Russian Federation, and the Parties, in addition, the rights provided for in Articles 39, 40, 41 of the Code of Civil Procedure of the Russian Federation (paragraph 1 of Part 1 of Article 150 of the Code of Civil Procedure of the Russian Federation).

21. It is explained that the judge polls the plaintiff or his representative on the merits of the stated requirements (paragraph 2 of part 1 of article 150 of the Code of Civil Procedure of the Russian Federation) in order to clarify the nature of these requirements, the circumstances on which they are based and evidence confirming these circumstances. All this matters to determine the judge of the law, which should be guided in resolving the case and the establishment of legal relations of the Parties, determining the circumstances of the importance for the case, and solve the issue of the distribution of responsibilities to proof.

22. The judge in accordance with paragraph 3 of Part 1 of Article 150 of the Code of Civil Procedure of the Russian Federation polls the defendant or his representative, based on the nature of a particular case, as well as the possible response objections. At the same time, the judge suggests the defendant to submit evidence to substantiate his objections, as well as in the necessary cases, clarifies its right to present a counterback requirement for the general rules for the presentation of the claim for joint consideration with the initial claimant's claim (Article 137, 138 of the Code of Civil Procedure).

23. Resolution in the preparation of a case for the judicial proceedings on the entry into the case of co-computers, appointments and third parties that do not declare independent claims regarding the subject of the dispute (paragraph 4 of part 1 of article 150 of the Code of Civil Procedure of the Russian Federation) is necessary to properly determine the composition of those involved in the case. Failure to fulfill this task in the preparation stage can lead to the adoption of an illegal decision, since the permit for the rights and obligations of persons not attracted to participation in the case is a significant violation of the procedural law standards, entailing unconditional cancellation of the court decision in appellate and cassation (part 1 of the article 330, paragraph 4 of part 2 of article 364 Code of Civil Procedure of the Russian Federation).

It should be borne in mind that in the case of a claim not by all persons who belong to the challenged right, the judge is not entitled to attract such persons to participate in the case as coalities without their consent, because in accordance with the principle of dispositionability, the person who owns the right of claim is disposed of With your rights at your discretion. The judge must notify such persons about the case in court.

If, in the preparation of the case, the judge will come to the conclusion that the lawsuit was presented to the person who should answer the claim, in compliance with the rules of Article 41 of the Code of Civil Procedure of the Russian Federation at the request of the defendant can replace the defendant. Such a replacement is made under the petition or with the consent of the plaintiff. After replacing the improper defendant, the preparation of the case is carried out from the very beginning. If the plaintiff does not agree to replace the improper respondent to another person, the preparation of the case, and then its consideration is carried out at a presented claim. Upon presentation of a claim for a part of the defendants, the court is not entitled by its initiative and without the consent of the plaintiff to attract other defendants to participate in the case as appropriate. The court is obliged to resolve the case on the claim, which is presented, and only in relation to those defendants, which are indicated by the plaintiff. Only in case of the impossibility of consideration of the case without the participation of the apprentice or approvers in connection with the nature of the controversial relationship, the court attracts it or their participation in the case on its own initiative (part 3 of article 40 of the Code of Civil Procedure of the Russian Federation). The motives for which the court recognized the impossible to consider this case without these persons should be given in the definition, a copy of which, together with a copy of the claim, is sent to attracted persons.

When replacing the improper respondent, properly need to take into account that the case can be considered the same court if, taking into account the new defendant, his jurisdiction has not changed.

If the jurisdiction of the case has changed (for example, the defendant is located on the territory of the jurisdiction of another court), the case, based on the provisions enshrined in paragraph 1 of Article 47 of the Constitution of the Russian Federation, should be transferred to the court to which it has fallen.

Replace the improper respondent and the action related to the replacement must be reflected in the protocol. The protocol of the commission of procedural action must comply with the requirements of Articles 229 and 230 Code of Civil Procedure of the Russian Federation. These actions should be made according to the rules of Article 152 of the Code of Civil Procedure of the Russian Federation.

24. The law allows the entry into the case of third parties that declare independent claims on the subject of the dispute, until the judicial decree is made by the court of first instance (part 1 of article 42 of the Code of Civil Procedure of the Russian Federation). Allowing the issue of participation of these persons in the process when preparing a case, the judge makes a definition of recognition by their third parties or refusal to recognize them by third parties. Upon joining third parties that declare independent requirements on the subject of the dispute, the preparation of the case should be carried out from the very beginning, since they enjoy all rights and carry all the obligations of the plaintiffs.

25. In order to ensure the right and timely permit, the judge, with its preparation for the trial, it is also entitled to solve questions about the connection or separation of the stated requirements (Article 151 of the Code of Civil Procedure of the Russian Federation).

26. The question of who is interested in the outcome of the case face, which the judge must notify the case, time and place of its proceedings are in the work, time and place of its proceedings (paragraph 6 of part 1 of article 150 of the Code of Civil Procedure of the Russian Federation) is determined by the nature of the case and its concrete circumstances.

Such people can be both citizens and organizations, the rights and obligations of which may affect the decision of the court (for example, the heir to the law in the dispute about the inheritance between other heirs).

These faces in the case proceedings may occupy the position of third parties in the process of third parties that declare independent requirements on the subject of the dispute (Article 42 of the Code of Civil Procedure of the Russian Federation), and on specially proceedings and on cases arising from public relations, is the situation of interested parties.

27. In cases not tolerant, in the preparation of a case for a judicial proceedings, a judge may conduct an inspection at the site of written and physical evidence (paragraph 10 of part 1 of article 150 of the Code of Civil Procedure of the Russian Federation).

The applicant and other persons participating in the case are notified about the time and place of inspection of evidence, but their non-appearance does not interfere with the inspection. The protocol of inspection of written (real) evidence is drawn up on the commission of this procedural action (article 184 of the Code of Civil Procedure of the Russian Federation).

28. In the direction of other courts of judicial orders (paragraph 11 of part 1 of article 150 of the Code of Civil Procedure of the Russian Federation) it is necessary to keep in mind the following:

a) the judicial order is an exceptional way of collecting evidence relating to the case and can be applied only in cases where these evidence for any reason cannot be submitted to the court considering the case;

b) In accordance with Article 62 of the Code of Civil Procedure of the Russian Federation, only the commission of certain procedural actions, a survey of parties and third parties, interrogation of witnesses, inspection and study of written or physical evidence. The execution of the judicial assignment is notified by the participating in the case.

The judge has the right to entrust the production of procedural actions to ensure evidence in accordance with Article 66 of the Code of Civil Procedure of the Russian Federation, if the relevant procedural actions must be made in another city or district;

c) in order of judicial order should not be collected written or material evidence, which may be represented by the parties or at their request they are exterminated by a court considering the case;

d) the judge is not entitled to give an order of recovery from the claimant of data confirming the validity of the claims, as well as other information that should be specified in the claim in accordance with Article 132 of the Code of Civil Procedure of the Russian Federation;

e) the judicial order should be directed in the form of a definition in exact accordance with part 2 of Article 62 of the Code of Civil Procedure of the Russian Federation. The judge in this case is entitled in accordance with Article 216 of the Code of Civil Procedure of the Russian Federation to suspend the proceedings (the definition of the suspension is made by the judge in the preliminary court session, which the protocol is drawn up (part 4 and 7 of Article 152 of the Code of Civil Procedure of the Russian Federation)).

29. Since Article 139 of the Code of Civil Procedure of the Russian Federation allows you to ensure the claim in any case, the judge must keep in mind that the provision of the claim is possible and in the course of preparing a case for a trial (paragraph 12 of part 1 of article 150 of the Code of Civil Procedure of the Russian Federation). In the exercise of legal proceedings, on the basis of competition and equality of the parties, the judge is not entitled to take measures to ensure the requirements stated by the parties.

Taking into account the requirements of part 3 of Article 140 of the Code of Civil Procedure of the Russian Federation, the judge, adhering measures to ensure the claim in the preparation of the case on the judicial proceedings, is not related to the applicant's initiative and should ensure the proportionality of measures to ensure the claim to the claims.

The application for ensuring the claim is considered on the day of his arrival in court without the notice of the defendant, other persons participating in the case. The adoption of measures to ensure the claim judge makes a definition (article 141 of the Code of Civil Procedure of the Russian Federation).

30. When preparing a judicial judge, the judge is entitled to hold a preliminary court session (paragraph 13 of part 1 of article 150 of the Code of Civil Procedure of the Russian Federation), which is appointed not for each civil case, but only in cases provided for by part 1 of article 152 of the Code of Civil Procedure of the Russian Federation: in order to procedurally consolidate administrative actions of the parties committed in the preparation of a case for the trial, determining the circumstances of the circumstances of the right consideration and permission of the case, determining the sufficiency of evidence in the case, the study of the facts of passing the timing of appeal to the court and the timing of the limitation.

Solving the question of appointing a preliminary court session, the judge notifies the parties about the time and place of its holding. The non-appearance of persons involved in the case does not impede the consideration of the issues of the preparation of the case in the preliminary court session. Considering that the decision to refuse a lawsuit based on the passage of the limitation period or the term of appeal to the court prevents further consideration of the dispute on the merits in the event of a non-appearance in a preliminary court session of the persons participating in the case, their representatives the question of the possibility of consideration of the respondent's objections is permitted accordance with Article 167 of the Code of Civil Procedure of the Russian Federation.

31. It should be borne in mind that in the preliminary court session, in the presence of the circumstances provided for in Articles 215, 216, 220, paragraphs of the second - sixth article 222 of the Code of Civil Procedure of the Russian Federation, the proceedings may be suspended or terminated, the application is left without consideration. At the same time on the suspension, termination of the proceedings in the case, on leaving the statement without consideration, the judge makes a definition (part 4 and 5 of Article 152 of the Code of Civil Procedure of the Russian Federation). A private complaint may be filed for the definition of a judge.

32. In the preparation of the case for a trial, the plaintiff may refuse the claim, the parties may conclude a settlement agreement or the agreement on the transfer of a dispute to the permission of the Arbitration Court. Since the permission of the issue of making a refusal of the claim and approval of the world agreement in preparation is not different from the relevant procedure under the trial (Article 173 of the Code of Civil Procedure of the Russian Federation), such administrative actions of the Parties can be procedurally enshrined in the preliminary court session.

The permission of the issue of making a refusal of the claim and approval of the world agreement in the preparation stage does not differ from the relevant actions of the judge under the trial (Article 173 of the Code of Civil Procedure of the Russian Federation).

The refusal of the claimant from the claim, as well as the world agreement of the parties, is not obligatory for the judge. If these actions contradict the law or violate the rights and law protected by law, the interests of others, the refusal of the claim is not accepted, as the judge is made by a motivated definition in compliance with the requirements provided for in Articles 224, 225 Code of Civil Procedure of the Russian Federation.

When concluding the parties to the contract for the transfer of a dispute to the resolution of the Arbitration Court, the judge in relation to the rules stipulated by Part 4 of Article 152 and Article 222 of the Code of Civil Procedure of the Russian Federation leaves the claim without consideration. Application on agreement of the parties to transfer a dispute to the Arbitration Court by analogy with the rules of Article 173 of the Code of Civil Procedure of the Russian Federation should be made to the protocol and receive signatures under it both parties, and when submitting the parties with the relevant written statement - to introduce it to the case. It should also clarify the consequences of leaving the application without consideration provided by Article 223 of the Code of Code of the Russian Federation.

The administrative action also includes the recognition by the defendant of the claim (part 1 of article 39 of the Code of Civil Procedure of the Russian Federation), which may be stated and in the preparation of the case for judicial proceedings. However, the adoption by the court recognizing the claim by the defendant and the decision of the decision on the satisfaction of the stated requirements in accordance with Article 173 of the Code of Civil Procedure of the Russian Federation is allowed only at the stage of the trial, during which the specified statement is subject to consideration.

33. At the preliminary court session, the respondent's objection can be considered regarding the plaintiff's missing without valid reasons for the limitation period to protect the right and established by the federal law of the term of appeal to court. In case of establishing the fact of missing without valid reasons for the limitation period or the term of appeal to the court, the judge decides to refuse a lawsuit without researching other actual circumstances in the case. Such a court decision may be appealed in appeals or cassation (part 6 of article 152 of the Code of Civil Procedure of the Russian Federation).

In the absence of grounds for the withdrawal of the plaintiff's pass, without valid reasons for the limitation period, the judge appoints a case to the court to protect the right or the law of appeal to the court.

During the trial, the defendant has the right to reiterate objections regarding the plaintiff's pass without valid reasons for the limitation period to protect the right or the term of appealing to court. The court in this case cannot be limited in the study of the relevant circumstances of the case based on the law established by law (Article 2 of the Code of Civil Procedure of the Russian Federation) of the goals and objectives of civil proceedings.

A protocol in accordance with Articles 229 and 230 of the Code of Civil Code of the Russian Federation (part 7 of article 152 of the Code of Civil Procedure of the Russian Federation) is drawn up on the preliminary court session.

34. The definition of preparing for judicial proceedings and other definitions made in connection with the preparation are not subject to appeal, because they do not exclude the possibility of further business, except for the definitions of ensuring the claim, to refuse to ensure evidence, to suspend, terminate production The case, on leaving the statement without consideration (Article 65, 145, part 5 of article 152 of the Code of Civil Procedure of the Russian Federation).

35. In accordance with Part 3 of Article 152 of the Code of Civil Procedure of the Russian Federation on complex cases, the judge may appoint a provision for a preliminary court session, which goes beyond the deadlines established by the Civil Procedure Code of the Russian Federation for consideration and permission of cases, which makes up a motivated definition with a specific indication of the period preliminary court session.

It should be borne in mind that the law does not provide categories of affairs to which these provisions apply.

When calculating the term of consideration of the case, the period specified in the definition is added to the term provided for by the Civil Procedure Code of the Russian Federation. Thus, the case is considered discussed in the case if the duration of its consideration does not exceed the collection of the term of consideration provided for by the Civil Procedure Code of the Russian Federation for this category of affairs, and the period specified in the motivated definition of a preliminary court session.

36. In accordance with Article 153 of the Code of Civil Procedure of the Russian Federation, the judge, recognizing the case prepared, makes a definition of appointing it to the proceedings at the court session. At the same time, the judge is obliged to inform the parties, other persons participating in the case, about the time and place of consideration of the case, as well as call other participants in the process in accordance with the requirements of Articles 113 and 114 of the Code of Civil Procedure of the Russian Federation.

37. In connection with the adoption of this resolution, the resolution of the Plenum of the Supreme Court of the Russian Federation dated April 14, 1988 No. 2 "On the preparation of civil cases for the court proceedings" with changes and additions made by the Decree of the Plenum of December 22, 1992 No. 19 , as amended by the Resolution of the Plenum dated December 21, 1993, N 11, with amendments made by the Decree of the Plenum of December 26, 1995 N 9, as amended by the Resolution of the Plenum dated October 25, 1996 N 10.

Chairman of the Supreme Court

Russian Federation

V.Lestev

Plenum Secretary

judge of the Supreme Court

Russian Federation

V.Demidov

This ruling of the Supreme Court of the Russian Federation can also be found as follows:

What you need to do under the preliminary meeting.

How is the preliminary meeting in court and world court.

Preparation for the court.

Preparatory stage of the trial.

Services of a lawyer and a lawyer in Moscow in court for disputes: divorce, section of property, alimony, child education, general real estate spouses. Call us by phone.

On September 15, 2015, the Code of Administrative Judging (hereinafter referred to as CAS RF, Codex), regulating the rules for consideration of cases, which arise from public relations.

The practice of applying the new Code revealed many controversial issues requiring clarification and additions.

In this regard, on September 27, 2016, the Plenum of the Supreme Court of the Russian Federation adopted Resolution No. 36 "On some issues of applying the courts of the Code of Administrative Judging of the Russian Federation" with the aim of giving clarification to the courts of general jurisdiction (hereinafter referred to as the decision).

The ruling touched almost all sections of the CAS RF. The most significant explanations concern:

Communication issues of administrative affairs;

The possibilities of succession at all stages of administrative proceedings;

Rules for consideration of collective claims;

Needlessness of higher legal education for representatives who are the only authorities of the Organization, as well as legal representatives;

Expansion of the list of pre-protection measures, etc.

Condemiousness of cases depends on the implementation of administrative powers by government agencies

The Plenum of the Armed Forces of the Russian Federation introduced clarity to the distinction between private-protective (civil-law) and public legal (administrative) legal relations.

Article 1 of the CAC of the Russian Federation is devoted to the subject of legal regulation of the CAS RF, indicating the open list of cases, which are considered by the rules of administrative proceedings. The article has long required refinement in connection with the inability to distinguish between private-level (civil-law) and public legal (administrative) legal relations, which led to difficulties in the process of its application.

In practice, there are quite often cases when the courts refuse to accept and consider the administrative statement on the basis that the case is subject to consideration in accordance with the procedure for claim.

For example, within the framework of the appeal definition of the Volgograd Regional Court of 11.08.2016 in case No. 33-11176 / 2016, the court supported the definition of the Staripoltavsky District Court of the Volgograd Region dated July 20, 2016 on the refusal to accept the administrative statement, since in this case the dispute follows from the part-based relations And it cannot be considered in the order of production of administrative affairs arising from public relations, according to the rules of ch. 22 CAS RF. According to the court, the dispute is subject to consideration in accordance with the procedure for claim (similar practice: the appeal definition of the Moscow City Court of 18.08.2016 in case No. 33A-31952/2016; the appellate definition of the Moscow City Court of 18.08.2016 in case No. 33A-16556/2016 etc.).

At the same time, a mirror opposite practice is found when the courts refuse to accept the claimant's statement according to the rules of claim due to the availability of public relations to be considered according to the rules of the CAS RF (for example, the case No. 33-11424 / 2016; the appellate definition of the Novosibirsk Regional Court of 12.07. 2016 in case number 33-7602 / 2016; the appellate definition of the Moscow City Court of 14.06.2016 in case No. 33-22846 / 2016).

Plenum tried to clarify the subject of legal regulation of the CAS RF. In particular, the decision establishes the criteria of cases that arise from administrative and other public relations, concluded by the courts of general jurisdiction, the Supreme Court, as well as cases that are not subject to consideration according to the rules of the CAS RF.

So, according to paragraph 3 of paragraph 1 of the decision in the CAC of the Russian Federation, cases arising from legal relations, which are not based on equality, autonomy of the will and property independence of its participants, while one of the participants in legal relations is implementing administrative and other public-authority authority and The use of laws and subtitle acts in relation to another participant.

However, this wording does not take into account the rule of Article 8 of the Civil Code of the Russian Federation, according to which civil rights and obligations may arise, among other things, from the acts of state bodies and local governments. Accordingly, such cases cannot be considered according to the rules of the CAS RF, and are subject to consideration in civil proceedings.

That is, ultimately, the appearance of legal proceedings is determined depending on the nature of the legal relations, which was not taken into account by the Plenum of the Armed Forces of the Russian Federation in its ruling.

As for the category of cases not subject to consideration in the CAC RF, then they include disputes on the invalid (illegal) acts of state bodies and local governments, if their execution led to the emergence, change or termination of civil rights and obligations (for example, Service disputes, affiliates related to the appointment and payment of pensions, the implementation of social rights by citizens, individual housing contracts).

The Plenum of the Russian Armed Forces clarified the wording of "other state bodies", whose decisions may be challenged according to the rules of the CAS RF (paragraph 2 of Part 2 of Article 1 of CAS RF). Among such organs, the Accounts Chamber of the Russian Federation, the CEC of Russia, as well as other election commissions are named. In addition, administrative proceedings are subject to consideration of the case on challenging decisions, actions of non-profit organizations, endowed with individual state or public authority, as well as solutions to a self-regulating organization (clause 2 of the decision).

The jurisdiction is determined at the place of execution of the duties of government agencies, and not at the place of its location

The jurisdiction is determined in accordance with the place of executive actions.

In determining the jurisdiction on disputes in the CAS RF, legal significance is to determine the territory on which the corresponding body of state authorities is fulfilled by its duties, and not the place of its location. If the powers of the relevant state authority are distributed to several districts, then the lawsuit should be submitted to the court of that area, in which the legal consequences of the contested plaintiff (inaction) arose or may arise, or on the territory of which the contested decision is executed (paragraph 8 of the Resolution).

Thus, the legislator found that in determining the jurisdiction of the stated requirements, legal importance is the place of execution.

Rules of a collective administrative claim similar to the rules of a collective claim on the APC RF APC

Much attention was paid to the decision of the Institute of Collective Administrative Claim, since the CAC of the Russian Federation left many unresolved issues related to the rules for the preparation and consideration of a collective administrative lawsuit, methods for the notification of potential members of the Group, the procedure for the interaction of members of the Group, including the Plaintiff. Finally, the authorities of the group members were not clearly established in the CAS of the Russian Federation for personal participation at the court hearing.

It should be noted that at the moment under Article 42 of the CAS of the Russian Federation, regulating the possibility of appealing to the court of a group of persons with a collective administrative statement, there is not a single court case.

Most likely, this situation is developing due to insufficient regulation of the CAS RF Institute of CAS. Plenum Sun has tried to clarify the rules for regulating the institution of collective administrative statement.

The CAS of the Russian Federation provides that a collective administrative statement of claim can be accepted by the court to consider only when at least 20 persons joined the claim, otherwise the statement of claim is left without movement. At the same time, the Plenum of the Armed Forces of the Russian Federation clarifies that the court is obliged to explain to the remaining participants on the legal opportunity to apply to the court with individual administrative lawsuits.

If the citizen who applied to the court with a claim similar to the collective requirement refuses to join a collective application, his claim is considered by the court after the decision on a collective claim. At the same time, the decision on an individual lawsuage is made taking into account the facts established in the process of consideration of the collective claim. Otherwise, the court must motivate the inconsistency of such a decision of the previously established facts (paragraph 17 of the Resolution).

According to part 4 of article 2 of CAS of the Russian Federation, part 3 of Article 225.6 APC RF Persons, in defense of which a collective administrative statement of claim has been submitted, the right to get acquainted with the materials of the administrative case, to make discharge and make copies from them. However, the Plenum of the Armed Forces of the Russian Federation reminds that such persons do not participate in the court sessions, so the court is not obliged to notify them about the time and place of the venue.

Legal representatives are not required to have higher legal education

The question of faces that may be representatives of the administrative case were resolved in the CAS of the Russian Federation not to the end. The legislator limited the circle of representatives of administrative affairs by lawyers and other persons having a higher legal education.

At the same time, it remained unclear about the legal representatives who most often do not have higher legal education, but it is entitled to act by representatives by virtue of the law. In addition, the legislator did not specify, about which level of higher education there is a question in Article 55 of the CAS of the Russian Federation - specialists, bachelories or magistrants of law.

The uncertainty on the level of higher education necessary for the implementation of the representative office in the administrative process was ignored by the judges of the Armed Forces of the Russian Federation.

The decision specifies the requirements imposed on legal representatives and representatives acting by force of attorney. To implement a representative office in court, legal representatives are not necessary to have a higher legal education, in contrast to representatives acting by proxy, and their powers may be limited to various legal acts (for example, by the law or charter of the Organization) (paragraph 2 of paragraph 19 of the Resolution).

The practice of applying CAS RF contains examples when the courts refuse to consider cases involving representatives who do not have higher legal education. In particular, the definition of the Moscow City Court of 05.10.2015 No. 4G / 4-9987 / 15 was left without considering the cassation appeal of the Department of Urban Property of Moscow. The court motivated his refusal to the absence of documents confirming the presence of a higher legal education in Moscow representative from the representative of the Department of Urban Property.

In addition, part 1 of article 55 CAS of the Russian Federation served as a reason for appealing to the Constitutional Court of the Russian Federation, Citizen Sheremethova I. T. with a complaint against the violation of the article under consideration of his constitutional rights.

The Constitutional Court of the Russian Federation refused to accept the complaint with the Citizen Sheremethov I. T., justifying that the constitutional right to judicial protection does not imply a choice at its discretion of any ways and procedures of judicial protection, and the right to keep their business in court through independently selected The representative does not mean the unconditional right to choose any person as such. The establishment of qualified legal aid criteria and the conditions for the admission of certain persons as defenders (representatives) in specific types of legal proceedings is the prerogative of the legislator. In addition, the Constitutional Court separately indicates the lack of obstacles to the plaintiff to independently implement its constitutional right to judicial protection through personal participation at the court hearing (definition of the CS of the Russian Federation of March 29, 2016 No. 680-O).

The burden of proving the absence of notice is assigned to the face that declares

Government bodies are notified through SMS messages, email letters.

It should be noted that lawyers have positively perceived the norms of the CAS RF, allowing the use of modern communications (SMS messages, e-mail) to notify and call participants in the process. At the same time, the questions remaining unresolved were reflected in the ruling.

The consent of the person participating in the case to notice it by sending an SMS message, an email may be expressed or in a receipt, or in an administrative statement, written objections to the administrative statement of claim (clause 36 of the Resolution). The decision separately indicates the possibility of notice through the direction of SMS messages, electronic letters of state bodies, local governments and officials in the presence of their consent.

However, the use of SMS messages and emails to notice the participants in the process is accompanied by additional difficulties that have not reflected in the ruling. For example, it remains an open question who must track the delivery of a message or an email to the direct addressee and what should be understood under proper notification. Obviously, it is not necessary to do without the help of cellular operators.

The burden of proving that the court notice or challenge was not delivered to the person participating in the case, in circumstances, independent of it, assigned to this person (paragraph 39 of the Resolution).

None in any other procedural code has no analogue to this rule. On the contrary, in the current procedural codes (Code of Civil Procedure of the Russian Federation, the APC RF), the persons participating in the case are obliged to prove the fact of delivering one or another notification or call.

From the point of view of the practice of applying an SMS message to notify persons involved in the case, it is interesting to see the case where the court canceled the decision of the court of first instance and sent a case to a new consideration in connection with the improper notice of the administrative plaintiff about the time and place of the court session. The position of the applicant was justified by the lack of consent of the plaintiff in the case of the case with the help of SMS messages. In addition, the court provides a report on sending a court message confirming the lack of information on the delivery of the message to the Subscriber (the appellate definition of the Sverdlovsk Regional Court of 15.06.2016 in case No. 33A-10447/2016).

Another example is the appeal definition of the court of the Yamalo-Nenets Autonomous District of 04.02.2016 in case No. 33A-222/2016, within the framework of which the court recognized as inappropriate notice of the plaintiff on the phone about the upcoming court session, made two hours before the start of the court hearing, which served An obstacle to the participation of the plaintiff at the court session.

Pre-protection measures can be changed without court session

The decision expands the list of preliminary protection measures established in part 2 of Article 85 of the CAS RF. Thus, in addition to the suspension of the contested decision or ban on the commitment of certain actions, the courts are eligible to apply the following preliminary protection measures:

The imposition of arrest on property belonging to the administrative respondent. Most often, the courts are used by this measure, guided by Article 288 CAS of the Russian Federation (the appellate definition of the Moscow City Court of 04.08.2016 in case No. 33A-16358/2016; the appellate definition of the Moscow City Court of 20.04.2016 No. 33A-13508/2016). However, the opposite practice is also found (the appellate definition of the Supreme Court of the Republic of Buryatia dated 09/21/2016 in case No. 33A-5890/2016).

Imposition on the administrative respondent and other persons, including those who do not participate in the court process, the obligations of committing certain actions;

Suspending the recovery on the executive document.

It is worth noting that the last two measures of pre-protection are applied by ships in practice without any special difficulties (the definition of the Kursk Regional Court of 03.02.2016 in case No. 33A-434/2016; the appellate definition of the Supreme Court of the Republic of Dagestan dated July 12, 2016 in case No. 33A-2744 / 2016; Appeal definition of the Supreme Court of the Republic of Dagestan dated 06.23.2016 in case No. 33A-2564/2016).

In addition, the decision does not exclude the possibility of applying several preliminary protection measures for one administrative claim. At the request of those involved in the case, one pre-protection measure can be replaced by another. Replacing measures is carried out without court session and without notifying persons involved in the case (paragraph 28 of the Resolution).

The application of preliminary protection measures is possible only after the adoption of an administrative statement on the work of the court (paragraph 27 of the Resolution).

The court is not entitled to verify the feasibility of the contested acts of government agencies

Special attention is paid to clarification of the Armed Forces of the Russian Federation in order to challenge decisions, actions or inaction of power entities. According to Article 62 of the CAS RF, the courts are not related to the grounds and arguments of the stated requirements and can go beyond their limits for a comprehensive and complete study of the administrative case. At the same time, the Court cannot recognize the decision or the action of state authorities legitimate with reference to the circumstances that were not subject to the consideration of the authorities or their officials (paragraph 61 of the Resolution).

According to the explanations of the Plenum of the Armed Forces of the Russian Federation, the courts are not entitled to verify the feasibility of disputed solutions, actions and inaction of state authorities, but the excess of authority or their use, contrary to the interests and rights of citizens, organizations, states and society, is a sign of illegal action (inaction) or decision (paragraph 62 Decisions).

With the failure to appear the participants in the audio recording process, it is not necessary.

Article 204 CAS RF provides for the mandatory audioocolization of each meeting of the first or appeal instance (including a preliminary court session), as well as each individual procedural action out of meetings. The plenum of the Armed Forces of the Russian Federation provided an exception to this rule: with the failure to appear the participants in the process or if their turnout is optional, audio production is not carried out. This rule is confirmed in the Bulletin of Judicial Practice on Administrative Cases of the Sverdlovsk Regional Court for the fourth quarter of 2015, approved by the Decree of the Presidium of the Sverdlovsk Regional Court of 30.03.2016.

Written logging is necessarily in all cases. The parties may submit written comments on the protocol, as well as the results of audio and video recording within three days from the date of signing the Protocol.

The presentation of the participant of the court proceedings may be limited, or the court can at all deprive his words without making a definition in the form of a separate judicial act. The decision of the Court to limit the speech of the participant in the process or deprivation of his word is accepted by the presiding judge and should be reflected in the minutes of the court session. Appealing such a measure of procedural coercion is possible only when appealsing the final judicial act (Article 202 of the CAS RF, paragraph 44 of the decision).

The remaining measures of procedural coercion are used by making a court definition in the form of a separate judicial act and appeal by private complaints, prosecutor representations (decree item 45).

Proceeding measures are applied at any stage of the administrative process. The definition of the application of measures of procedural coercion is made by the judge alone (in the preparation of a case for consideration) or by the Court's collegial composition (paragraph 46 of the Resolution).

One of the distinguishing features of the administrative process is the active role of the court, expressed in an additional charge of the court to take the necessary measures to comprehensively and complete the actual circumstances of the administrative case, as well as to identify and refund on its own initiative of evidence in order to properly resolve the case (part 1 of Article 63, part 1 of article 63 8, 12 of Article 226, part 1 of article 306 CAS RF).

As for the evidence, the Plenum of the Armed Forces of the Russian Federation bypassed Article 59 of the CAS of the Russian Federation, requiring refinement. This article presents a list of evidence admissible in the administrative process, one of which is emails. At the same time, the Code does not explain that it should be understood under electronic documents and how to operate with such evidence.

To date, the practice of using electronic documents as evidence in the case consists of only a couple of cases and will gain a turnover in the process of applying Article 59 of CAS RF (Definition of the Moscow City Court of 08/23/2016 No. 4GA-9033/2016; the appellate definition of the Moscow City Court of 18.12 .2015 in case number 33A-47881/2015).

It should be noted that in connection with the adoption of this resolution, the Resolution of the Plenum of the Russian Federation of the Russian Federation dated February 10, 2009 No. 2 "On the practice of consideration by the courts of cases of challenging decisions, actions (inaction) of state authorities, local governments, officials, state and municipal bodies employees. "

Not all cases can be considered in the order of simplified production.

In the Cass of the Russian Federation, chapter 33 is devoted to simplified production, which contains only four articles. Therefore, the Plenum paid great attention to this chapter, in particular, specifying the grounds, timing and procedure of simplified production.

The Decree lists cases that cannot be considered in the order of simplified production by virtue of the procedural features established by the CAS of the Russian Federation, the procedural characteristics of the consideration of certain categories of cases associated with the composition of the court, the timing of the trial, or by virtue of the direct indication of the law.

For example, disputes associated with restricting the rights and freedoms of a citizen require a mandatory presence of an administrative respondent or its representative. In this connection, such disputes cannot be considered in the order of simplified production.

Administrative cases, the term of consideration of which is less than the term established by the Code for Simplified Production, also cannot be considered according to the rules of chapter 33 CAC of the Russian Federation (paragraph 3 of paragraph 70 of the Resolution).

The term of consideration of the administrative case in the order of simplified (written) production is 10 days from the date of the determination of the consideration of the administrative case in the order of simplified (written) production. In one case, the court contrary to the petition about the consideration of the case in the order of simplified (written) proceedings considered the application in open court. He substantiated this by the fact that the case was appointed on the date emerging beyond the limits of the ten-day period, and, therefore, cannot be considered in simplified production (the appellate definition of the Tver Regional Court of 10.08.2016 in case No. 33-3332 / 2016).

Despite the fact that Russia belongs to the continental legal system in which the judicial precedent is not a source of law (in contrast to the countries of the Anglo-Saxon system), the importance of judicial practice is difficult to overestimate. Not an exception and area of \u200b\u200blabor law.

Should the judge of the district court should be guided by the decision of the Russian Armed Forces of the Russian Federation on a specific case in which case the resolution of the Plenum is the basis for the revision of the decision that the Supreme Court of the Russian Federation can decide whether the Supreme Court of the Russian Federation can make a decision that is dispersed with its explanation given in the review of judicial practice

The most important as the parties to the dispute and the judges themselves are the positions of the Supreme Court of the Russian Federation. Since one of the tasks of the Higher Judicial Instant is to follow the uniformity of judicial practice, - regional courts are closely studying the positions of the Supreme Court of the Russian Federation so that their judicial decrees consisted of the leading line of the country's chief court, even though in law on the mandatory nature of the clarification of the Armed Forces of the Russian Federation directly not indicated. However, not in all cases, the opinion of the Supreme Court of the Russian Federation is crucial for the dispute. For example, if the employee leads to a confirmation of its position a specific decision of the Supreme Court of the Russian Federation, the reference to it may be rejected by the court for the reason that it does not have an uncertain value. But if the position is contained in the Resolution of Plenum or the review of judicial practice, the court will be difficult to incline.

The court decision may be canceled if it goes against the clarification of the Plenum of the Russian Federation

Traditionally, one of the weighty arguments in the dispute is a reference to the position of the Supreme Court of the Russian Federation, which is contained in the Resolution of the Plenum of the Armed Forces of the Russian Federation. Judges, as a rule, always take into account in their decisions and definitions of clarification of the highest judicial instance, and the departure from this rule can be a reason for the cancellation of the decision in appeal or cassation. Meanwhile, legally explaining the Plenum of the Supreme Court of the Russian Federation has ceased to be mandatory for the courts after entering into force in 2011 of the Federal Constitutional Law of 07.02.2011 No. 1-FKZ "On the courts of general jurisdiction in the Russian Federation". The specified law in 2011 canceled the action of the RSFSR law from 07.07.1981 "On the JFSR judiciation" in part Art. 56, according to which the guidelines of the Plenum of the Sun were mandatory for ships. Now, according to paragraph 1 of Part 3 of Art. 5 of the Federal Constitutional Law of 05.02.2014 No. 3-FKZ "On the Supreme Court of the Russian Federation" Plenum of the Armed Forces of the Russian Federation considers the materials of analysis and summarizing judicial practice and gives courts to clarification on judicial practice in order to ensure the uniform application of the legislation of the Russian Federation. The obligatory nature of the clarification of the Plenum of the Armed Forces of the Russian Federation in law is not directly indicated.

Despite this, to build its position in court on the basis that the clarification of the Plenum of the Armed Forces of the Russian Federation is not obligatory to use - not quite faithful tactics. The courts still consider these acts of acts by the most authoritative sources in the sphere of interpretation and the application of the rules of law. Therefore, if the other side comes to the position of the Armed Forces of the Russian Federation, the court is likely to be taken into account. After all, otherwise, the decision may be canceled or changed due to the incorrect interpretation of the law (paragraph 3 of Part 2 of Art. 330 Code of Civil Procedure of the Russian Federation).

Arbitrage practice.
The appellate instance did not agree with the position of the lower court relative, but interpretations of relations on non-payment of wages as the grounds. The college noted that when a decision was made, the provisions of the decision of the Captivity of the MA Armed Forces of the Russian Federation dated 17.03.2004 NO 2. According to them, it is necessary to comply with a certain condition for recognition of the labor rights: wages to the employee must be accrued, but not paid. But in this case there was no such circumstance. As a result, the decision was canceled (the appellate definition of the Moscow City Court of 04/04/2013 in case No. 11-10524).

Similar conclusions are also contained in the appellate definition of the Moscow City Court of 08/22/2013 in case No. 11-27105.

In addition, the position of the Plenum of the Russian Armed Forces of the Russian Federation may affect the revision of a particular case in favor of the employer, even if the decision was made before the adoption of the Presidential Resolution. Moreover, the courts can rely on the position of the Plenum of the Armed Forces of the Russian Federation, including on its own initiative in the absence of reference to it in an appeal or other complaint.

The decision that entered into force may be revised by newly discovered circumstances. In connection with the adoption of the Resolution of the Plenum of the Armed Forces of the Russian Federation. But for this, in the document itself it must be indicated on this opportunity. In this case, the side has 3 months from the date of publication of the decision to submit an application for revision (sub. "B" of paragraph 5 of Resolution No. 31)

So, in one case, recognizing the dismissal of pregnant workers on the initiative of the employer illegal, the court of first instance restored it at work. However, the superior instance has canceled the decision in this part due to the termination of the employer as an individual entrepreneur. The court referred to paragraph 24 of the Resolution of the Plenum of the Armed Forces of the Russian Federation of January 28, 2014 No. 1 (hereinafter referred to The formulation of the foundation of dismissal for dismissal due to the termination of activities as an individual entrepreneur. At the same time, the discharge date also changes to the exclusion date of the individual entrepreneur from the Unified State Register of Individual Entrepreneurs (the appeal definition of the Krasnoyarsk Regional Court of 03.02.2014 in case No. 33-982).

Thus, one of the main tasks in preparing for a court session is to check how much the company's action corresponded to the requirements of the legislation, taking into account the clarification of the highest court.

The resolution of the Plenum is applied when revising new circumstances, if it is indicated

The Plenum of the Russian Armed Forces of the Russian Federation to address issues of labor law (as opposed to questions of some other branches of law) is going quite rarely. The most important and most cited document - the decision of 17.03.2004 No. 2 was adopted for a long time, and all the changes that were subsequent in it did not have fundamental importance. However, at the beginning of this year, the Supreme Court of the Russian Federation adopted a resolution regarding the work of women and minors, which contains positions on a number of important situations for the employer. In particular, the court in a new way interpreted Part 2 of Art. 261 of the Labor Code of the Russian Federation and indicated that in the case of the child's birth, the dismissal of a woman in connection with the end of the urgent employment contract is made on the day of the end of maternity leave, while in the norm itself the end of pregnancy.

Due to the fact that the named resolution contains fundamentally new positions on issues, the judicial practice for which has already been established, many employers have a question, can the decision that has already entered into legal force on the newly discovered circumstances under Art. 392 Code of Civil Procedure of the Russian Federation.

So, there is no such possibility. As indicated by the Supreme Court of the Russian Federation in sub. "D" paragraph 11 of the Resolution of the Plenum dated December 11, 2012 No. 31 (hereinafter referred to as Decree No. 31) The judiciary may be revised by the newly discovered or new circumstances only if the Resolution of the Plenum of the Armed Forces of the Russian Federation, which determined (or changed) practice Applications of the legal norm, indicated on this feature. In decree No. 1 there is no such instruction. Accordingly, employers should not be afraid of unexpected changes to the already completed cases of the specified issues.

If the Plenum of the Supreme Court of the Russian Federation will take a new ruling on the regulation of labor relations and it will be spelled out a similar opportunity, it will be prescribed by the court decision on the following condition. The application must be submitted to the court at a 3-month period (art. 394 Code of Civil Procedure of the Russian Federation), which begins to flow from the day following the day when the text of this resolution of the Plenum was placed on the official website of the Armed Forces of the Russian Federation, or when it was published in "Russian newspaper." On such order is indicated in sub. "B" of paragraph 5 of Resolution No. 31.

Reviews of the Practice of the Presidium and Clarification of the Plenum have almost equal strength to ships

If the Labor Plenum of the Armed Forces of the Russian Federation is not going so often, then the reviews of the presidency publishes regularly. Reviews can be based on specific cases of the Armed Forces of the Russian Federation or other vessels, or give explanations on issues arising in judicial practice (as issues and answers). Just as the Resolution of the Plenum of the Armed Forces of the Russian Federation, formally reviews are not compulsory, but in fact, in the overwhelming majority of cases, the courts take into account the positions of the Armed Forces of the Russian Federation and refer to them in their decisions. The Armed Forces of the Russian Federation in its reviews leads the positions that adhere to himself. Therefore, if the case in the process of appeal will reach up to the highest instance, it is unlikely that the Supreme Court will decide contrary to the previously expressed point of view.

From a practical point of view, the difference between the resolutions of the plenum and the reviews of the Presidium is rather ghost. It is believed that the plenum solves more fundamental questions, and the Presidium gives operational explanations. But for the Supreme Court of the Russian Federation and for lower courts, they have almost the same convincing force.

The employer has a little chance to convince the court in its rightness, if a position in favor of the employee is formed in the review of the judicial practice of the Russian Federation

For example, in paragraph 5 of Part 4 of Art. 392 Code of Civil Procedure of the Russian Federation Reviews of the Judicial Practice of the Presidium of the Armed Forces of the Russian Federation are not directly indicated as giving reason to revise judicial resolutions for new circumstances. But in practice, sometimes in their meaning equal to the resolutions of the Plenum of the Russian Armed Forces, which give grounds for revising.

Arbitrage practice
An employee of the internal affairs bodies demanded to establish him a monthly compensation in connection with the loss of health. The court satisfied his demands, but the employer (local department of the Ministry of the Interior) demanded to revise the case on newly discovered circumstances. In this circumstance, the fact that the Armed Forces of the Russian Federation in the review of judicial practice for the fourth quarter of 2011 indicated that the persons receiving a retirement for long-term years, such compensation was not supposed. The courts of two instances agreed that in this case the case is subject to revision, but the cassation rose to the side of the employee. She pointed out that this review does not indicate the possibility of giving it the inverse force. In addition, it would have worsened the position of the employee as a weaker side, which also contradicts sub. "D" of paragraph 11 of Resolution No. 31 (Resolution of the Presidium of the Smolensk Regional Court of 05/16/2013).

Three most important decisions of the Plenum of the Armed Forces of the Russian Federation RESOLUTION of 03/17/2004 No. 2 (general issues of the application of the Labor Code of the Russian Federation) Resolution of November 16, 2006 No. 52 (Material Responsibility) Resolution of January 28, 2014 No. 1 (specificity of the work of pregnant and individuals with family responsibilities)

Thus, the employer has a little chance to convince the court in its rightness if a position in favor of the employee is formed in the review of the judicial practice of the Armed Forces of the Russian Federation. However, if the review is compiled with a description of specific cases, the reference to it in the appeal or cassation appeal can be rejected. The basis can be the fact that the judicial act as an example is adopted for a specific civil case, taking into account other circumstances. At the same time, if the circumstances of the deeds are identical, the court will most likely adhere to the position set out in the review of the Armed Forces of the Russian Federation.

By the way

The Supreme Court of the Russian Federation can move away from the previously expressed position

There are cases when the Armed Forces of the Russian Federation changes its opinion on the issue that they were given an official explanation.

Thus, great fame received the case when the Armed Forces of the Russian Federation published an explanation on the issue, whether the minimum wage is included in the establishment of a monthly salary of the employee compensation and stimulating payments. In the review for the fourth quarter of 2009 (approved by the Decree of the Presidium of the Armed Forces of the Russian Federation of 10.03.2010), the court indicated that it was the sizes of tariff rates and salaries that could not be less than a minimum welfare if the employee fully worked out during this period the working time rate and fulfilled the labor standards ( Labor duties). Compensation stimulating and social payments can be established by employees only over the mentioned minimum wage. However, after 3 months of the Armed Forces of the Russian Federation, he recalled his clarification (Resolution of the Presidium of the Armed Forces of the Russian Federation of 16.06.2010). Subsequently, the Supreme Court in decisions on specific cases repeatedly indicated that the salary of the employee could be less than the minimum wage if the size of the monthly wage exceeds this magnitude. It can be stated that the Supreme Court departed from the previously expressed position, using the review procedure of its explanation.

The court is not obliged to follow the position of the Armed Forces of the Russian Federation set out in a concrete decision

In addition to references to clarifying the plenum and reviews of the judicial practice of the highest judicial instance, the part of the dispute is often referred to similar solutions to the Supreme Court from its current practice. However, to predict how much for the court it will be a decisive argument, quite difficult. In some cases, the reference to the case of the case on the decision of the Russian Armed Forces of the Russian Federation to confirm his arguments is steaming by the court in that since the parties of this case did not participate in the consideration of the dispute, through which the Armed Forces of the Russian Federation ruled, it is not predominant for the current dispute (part 2 of Art. 61 Code of Civil Procedure of the Russian Federation). As an example, a fairly constructed definition of the Armed Forces of the Russian Federation dated July 30, 2008 No. 36-B08-23, in which the Higher Judicial Instant concluded that the employer complies with the employer's dismissal procedure, despite the fact that the employer did not give an employee two working days on Providing an explanation and fired after him to provide them. Many courts directly referred to this decision in refusing to employees in meeting their requirements for reinstatement at work (definition of the St. Petersburg City Court of 08.09.2010 No. 12408, cassation definition of the Volgograd Regional Court of 06.21.2011 in case No. 33-8206 / 11 and Dr.). At the same time, the Supreme Court of the Republic of Kalmykia decided in one business that, since the employer did not provide the employee the necessary time for the giving explanation, then, taking into account other violations, the dismissal is unacceptable. At the same time, the court considered an insconant reference to the above decision of the Armed Forces of the Russian Federation, indicating that this act is not a disagreement under the case under consideration (the cassation definition of 13.04.2010 in case No. 33-300 / 2010).

An Omsk Regional Court came to similar conclusions in the appeal definition of 05.12.2012 in case No. 33-7845 / 2012. In this case, the employer filed a lawsuit to the employee at the place of execution of the contract, and not at the place of his residence. In confirmation of the correctness of determining the jurisdiction, he referred to the definition of the Verkhovnogosuda of the Russian Federation of 05.03.2009 No. 35-B091. In turn, the court who considered the case, rejected this argument and indicated that this decision was made on another dispute and between other parties, therefore it does not have an uncertain value in this case.

Nevertheless, it is worth recognizing that the courts often use references to the decisions of the Armed Forces of the Russian Federation for specific cases. The value of the decision of the Russian Armed Forces of the Russian Federation on a specific case is particularly increasing, if it is described in the review of the judicial practice of the Presidium of the Armed Forces of the Russian Federation, as described above.

Three cases when the position of the Armed Forces of the Russian Federation is not a decisive argument The position is contained in a concrete solution. The decision was made on the dispute between other parties the decision is not included in the judicial practice review.

Arbitrage practice
The worker appealed to the court demanding the recovery of wages. However, the statement of claim was returned, since it was submitted at the place of fulfillment of work, and not at the place of registration of the employer. A female worker filed a complaint to a higher court who fell on her side. He considered that claims arising from the treaties in which the place of their execution could be brought to court at the place of execution of the contract. In addition, the court referred to the fact that the possibility of consideration of such claims at the place of execution of the employment agreement was previously indicated in the definition of the Supreme Court of the Russian Federation of 05.03.2009 in case No. 35-B091 (definition of the Moscow City Court of 30.03.2010 NO 33-8741).

It is noteworthy that in this matter the court referred to the decision of the Armed Forces of the Russian Federation, and not for a review of judicial practice in which it is indicated (a review of the legislation and judicial practice of the Armed Forces of the Russian Federation for the first quarter of 2009). Several previously, the Moscow City Court, in January 2010, in another case, made a decision on leaving the definition of the Ostankino District Court of Moscow on the transfer of the case on jurisdiction in the October District Court of St. Petersburg (the author of the employer in this dispute was represented by the author of the article ). At the same time, the court did not take into account the indicated review and the decision of the Armed Forces of the Russian Federation, to which the worker referred to in his private complaint, although the employee's work was in Moscow. In this case, despite the position of the Armed Forces of the Russian Federation, the court listened to the arguments of the employer's side regarding what to talk about the place of work as a place of execution of the employment contract is not quite correct.

Thus, overcoming the employer in a particular case of the position occupied by the Supreme Court of the Russian Federation in another case, even if this position was reflected in the review of the judicial practice of the Armed Forces of the Russian Federation, it is quite possible.

By the end of last year, the Armed Forces of the Russian Federation prepared a lot of important decrees - he did not bypass the appointment and procedure for appointing criminal penalties by the courts. As a result of the generalization of the existing practice, a separate document was adopted, this procedure is regulated in detail (the decision of the Plenum of the Armed Forces of the Russian Federation of December 22, 2015 No. 58 ""; Further - Resolution No. 58).

Consider the most important findings of the Armed Forces of the Russian Federation.

Can the defendant informal spouse affect the sentence?

The Armed Forces insists on a strictly individual approach to the imposition of punishment (). At the same time, he prescribes to take into account the features of the person of the perpetrator. For example, data on its family and property situation, health, behavior in everyday life, may affect the verdict on the sentence. At the same time, the Armed Forces of the Russian Federation stressed that the presence of rejuvenated or discontinued convictions cannot be taken into account as a data that adversely characterizing the defendant person.

The Criminal Code establishes that when prescribing punishment, it is necessary to take into account the influence of the imposed penalties on the living conditions of the sentence of the convicted person (). The Armed Forces clarified that the courts should be guided by this norm, when, for example, as a result of the deprivation of a man of freedom, his family members will lose their lives to existence due to their age and (or) health states. At the same time, the specified requirement concerns not only the relatives of the defendants and their spouses - according to the court, this provision may be distributed to persons consisting of accused in actual marital relations, not registered officially (). Thus, the Armed Forces of the Russian Federation prescribed to take into account the needs of a rather extensive category of persons whose interests were not previously protected directly.

Is the disability with a softening circumstance?

The Armed Forces of the Russian Federation stressed that the Criminal Code allows the courts to take into account certain circumstances not listed in the law as mitigating punishment). A similar position was both in the raised strength, but in a new document, the court expands the list of examples of those circumstances that can be considered mitigating, for example:

• recognition of guilt, including partial;
• repentance in the deed;
• the presence of minor children, provided that the guilty takes part in their upbringing, material content and the crime is not committed against them (the Criminal Code calls, without specifying, as a softening circumstance only "the presence of young children");
• the presence on dependency of the guilty elderly persons;
• state of health of the perpetrator, the presence of disabilities;
• the presence of state and departmental awards, as well as participation in hostilities for the protection of the Fatherland, etc.

Recall that, according to the law, to the number of softening circumstances, it includes, for example, a minority of the accused, his turnout, which is the oppression of the behavior of the victim et al. (). In turn, aggravating such circumstances as relapse, reporting, the use of weapons, committing a crime from revenge, as well as against a defenseless person, special cruelty, etc. (). The list of the latter is exhaustive and expansion is not subject to. As the court explains, these circumstances should be indicated in the verdict as aggravating and precisely in such a wording that is enshrined in the Criminal Code of the Russian Federation (,). "The appointment of the sentence, taking into account the aggravating circumstances missing in the Criminal Code, is the basis for changing the sentence, the exclusion of such reference and mitigation of punishment," explains the requirements of the Armed Forces of the Russian Federation, the lawyer, a member of the Law Chamber of Moscow.

What could be confirmed by the state of alcohol intoxication of the defendant?

The unconditional proof of the persistence of the accused at the time of the crime is traditionally the conclusion of physicians.

But in his new decree of the Armed Forces of the Russian Federation clarified that the state of intoxication can be confirmed not only by medical documents, but also by the testimony of the victim, the defendant and other persons ().

An exception to the court recognized the involvement of an accident drunk driver. In this case, the state of intoxication is recognized as proven only if:

• this fact was recorded during a medical examination conducted in a medical organization;
• the driver refused to pass a medical examination (, paragraph 13 of the rules of examination of the person, which manages the vehicle, to the state of alcohol intoxication and the design of its results, directions of this person on a medical examination on the state of intoxication, medical examination of this person to intoxicate and design its results ). Obviously, this is due to the fact that the state of intoxication for this crime is a qualifying sign, directly named in the Criminal Code of the Russian Federation (,). And if this circumstance, the punishment will be more severe. For example, the culprit of an accident, as a result of which the victim was gravily harm to health, threatens imprisonment to two years - but if he was drunk, the maximum term of conclusion is doubled. And this, in turn, presents special requirements for the evidentiary base.

Is the obequinny turnout, if the guilty face subsequently refused his testimony?

The current legislation unequivocally evaluates the appearance with a mantow as an circumstance that mitigating punishment (). But often a person who voluntarily reported on a perfect crime, subsequently, during a preliminary investigation or at the court hearing, does not confirm the reported information reported by them. The Armed Forces clarifies that in this case there is grounds for softening the punishment (). The former clarification of the courts did not give.

The Armed Forces of the Russian Federation recalled that as a softening circumstance takes into account the active promotion of the disclosure and investigation of crimes (). And, unlike previously acting, in new clarifications of the court, examples of such actions are given:

• specifying accomplices, data about them and about their location;
• listing persons who can testify testimony, or those who acquired abducted property;
• clarification of the place of concealment of the stolen, finding instruments of crime and other items, with the help of which the circumstances of the case can be established ().

The court also noted that in the active assistance of the defendant disclosure of a group crime, the court is entitled to appoint him a softer punishment even in the presence of aggravating circumstances ().

Are there any restrictions when prescribing a punishment in the form of a ban to occupy certain positions?

In, as in previously acting clarifications, the Russian Armed Forces once again recommended the courts to pay special attention to the fact that deprivation of the guilty of the right to occupy certain positions concerns the exclusive state or municipal service, but not the private sector (). The court clarified that in this sentence, a particular position should be specified, but a circle of posts defined by specific signs. For example, not the "senior accountant", but "the post associated with the implementation of administrative and economic powers."

OPINION

Konstantin Kudryashov, lawyer, member of the lawyer of Moscow:

"Clarification of the Court on this issue is quite fair - it is aimed at a reduction in the" relatively honest "ways of non-performance of the sentence. So, formally implementing a court decision on the ban on occupying the post" Senior Accountant ", a convicted person could be transferred to a position with a different name, for example," Deputy Chief Accountant ". It turns out, de-Yura sentence is executed, but in fact convicted even improved in position."

Another additional punishment is the deprivation of the right to engage in a certain type of activity. In the Old Decree No. 2 of the Armed Forces of the Russian Federation, separately mentioned the deprivation of the right to manage the vehicle, having recommended the courts to be thoughtfully approaching the appointment of this punishment if such activities are for the defendant profession (). Now the Russian Armed Forces has expanded the scope of this rule: the courts must be careful if the person is deprived of the right to deal with a certain type of activity in any case when it is associated with its only profession. This concerns, for example, doctors and teachers.

Such a conclusion of the court lawyers unconditionally welcome. "The Armed Forces of the Russian Federation pointed out the lower courts to the need to not discharge the disadvantaged people on the" hungry death "even for committing a crime," said Konstantin Kudryashov.

***

In general, the clarification of the Armed Forces of the Russian Federation is quite liberal. This is expressed not only in the already mentioned positions, but also in others, not so principled. For example, the court stressed that the deprivation of military personnel of freedom can be replaced by maintenance in the disciplinary military part, even if the term of imprisonment below the lower limit provided for ("Crime against military service"). Considering that it is designed to lead to the uniform practice of all vessels, such an approach, apparently, will be perceived by the lower courts.

Features of the applications by the courts of legislation on compulsory insurance of civil liability of vehicle owners have already been clarified by the Supreme Court of the Russian Federation - in (hereinafter referred to as Decree No. 2). However, after the adoption of this document into a federal law of April 25, 2002 No. 40-FZ "" (hereinafter referred to as the law on the CCOS), significant changes were made. So, from January 1 of the current year, insurers enter into an OSAGO Agreement in electronic form with each person who applied with the relevant statement. Since April 28, a rule applies to the priority of natural compensation caused by a number of cars as a result of harm accident ().

In this regard, the Armed Forces of the Russian Federation approved a new ruling - (hereinafter referred to as a resolution). The document contains not only recommendations for the application of innovations, but also the refined positions of the court for the application of the norms already operating at the time of the previous decree, although most of the provisions were transferred to it practically without editors. Among the most important, you can allocate new clarifications on the following issues.

Conclusion of the CTP agreement.As a general rule, the conclusion of the contract is confirmed by the presence of the insurance policy. Since the information on all prisoners in the electronic form of the OSAGO treaty should be included in the automated compulsory insurance information system (), the Armed Forces of the Russian Federation recommends the courts to take into account information on the fact of the conclusion of the contract and its conditions submitted by the professional association of insurers. At the same time, the absence in this system of information about the insurance policy itself can not be unconditional proof of non-fulfillment of the obligation to conclude an insurance contract, this fact should be assessed in aggregate with other evidence, emphasized the court ().

Message by the insured at the conclusion of the CTP agreement in the electronic form of unreliable information in order to reduce the size of the insurance premium paid by the insurer, we will remind, is not the basis for the recognition of the contract is not disconnected and does not exempt the insurer from the obligation to pay insurance compensation upon the occurrence of the insured event. But the insurer produced under such a contract can recover from the insured in the order of regression. Also, regardless of the occurrence of the insured event, the insurer has the right to recover unreasonably saved by the insured in connection with the presentation of unreliable amounts of sum (). However, if the specified amount is charged with the insurer before the occurrence of the insured event, he loses the right to present a regulatory demand for the insured, since the insurance premium is fully paid, considers the Armed Forces of the Russian Federation ().

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Appeal to the insurer.An application for insurance compensation or direct compensation of losses and others necessary in accordance with, is sent to the insurer or its representative (). The list of representatives of the insurer authorized to carry out insurance compensation or direct damages should be issued to the insured simultaneously with the insurance policy on receipt, the court noted (). At the same time, in all documents sent after applying for insurance reimbursement, documents should contain information about this statement, for example, an indication of the division of the insurer into which it is filed (). The same rule, according to the Armed Forces of the Russian Federation, the insured must be observed and when submitted due to the failure or improper performance of their obligations. It is assumed that this will allow the insurer to relate the received documents with previous appeals of this insured.

Direct damages.Starting from September 26, 2017, direct compensation of losses, that is, the presentation of the victims of damages to their insurer, possibly in the event of a collision not only two, but also more vehicles (). Since this procedure applies only if the civil liability of the owners of all vehicles affected by the accidents are insured, the court explained how insurance compensation is carried out in the case when the Harm's injury is not concluded. It is indicated that the harm caused to the property of the victims is reimbursed by the owners of vehicles (according to the rules envisaged), the harm of life and health - the professional association of insurers, and in case of insufficiency of the relevant compensation payments for complete compensation of harm - its bait ().

Repair.The Armed Forces of the Russian Federation noted that, in addition to the organization and payment of the restoration repair of a damaged vehicle, the insurer must compensate the victim - on the basis of his statement - a number of other expenses, in particular - to evacuate the car from the scene of an accident, the delivery of the victims of the victim in him to the hospital, work to restore road signs and fences, etc. (). At the same time, the costs needed to bring the car into the daubic state, but not provided, are not included in the insurance indemnity. Such expenses, according to the court, is, for example, restoration of airbrushing or other drawings deposited on the machine ().

If the insurer does not fulfill its obligations to organize repair, the victim is entitled to go to court with a claim for the recovery of insurance compensation in the form of insurance payments or on the interaction of the insurer to commit the required actions, including the issuance of the direction of repair, indicated the Armed Forces of the Russian Federation (). In addition, in this case the so-called Astrate () can be applied - the court has the right to award in favor of the victim funds in case of failure to fulfill the judicial act.

Special attention is paid to the settlement of the cost of rehabilitation. The court stressed that, in contrast to the general rule, according to which the amount of costs for the replacement of component parts are determined taking into account the wear (), the payment of the value of the mandatory replacement repair is made by the insurer without taking into account the wear (). As the secretary of the Plenum of the Armed Forces Viktor MomotovThis rule is a kind of compensation for the owners of the TC, which cannot choose such a method of insurance compensation as receiving insurance payments. As noted above, from April 28, the harm caused to a passenger car, which is owned by the individual and is registered in the Russian Federation, is reimbursed, with the exception, only by conducting restoration repairs ().

Materials on the topic

On the position of the Armed Forces of the Russian Federation on the application of the norms of the Civil Code on the change of persons in the obligation on the basis of the transaction, learn from.

Reference requirements. The Armed Forces of the Russian Federation recalled that the transfer of the rights of the victim (beneficiary) under the OSAGO Agreement is possible only from the moment of an insured event. Moreover, the new beneficiary may receive compensation under the observance of the same as provided for for the initial beneficiary, conditions. For example, he must notify the insurance company about the occurrence of the insured event, send a statement of insurance payment, to submit property for technical expertise, send a claim if this did not make the previous beneficiary ().

Such rights as the right to compensate for harm to life and health, compensation for moral damage, obtaining a recovered of the insurer and is not similar to transmission under the CESSIA Treaty. However, already awarded amounts of compensation for moral damage and these fines can be transferred to any person, the court considers ().

Procedural issues. A number of new clarification are devoted to the procedural characteristics of the consideration of disputes related to OSAGO treaties. It is noted, in particular, that the settlement of disputes is considered to be observed if the victim did not just send a claim to the insurer and all the necessary documents, but also indicated their information that will relate to the claim with previous appeals. In the event of a claim for recovery not only insurance compensation, but also a penalty or other financial sanction, the pre-trial procedure is considered to be observed if the victim applied to the insurer only with the requirement of insurance payment (,). If the requirements for the recovery of the penalty and financial sanction are declared after the entry into force of a court decision on the payment of insurance compensation, the victim is obliged to send them to the insurer before going to court. By the way, with a statement of several lawsuits, one contract should be borne in mind that the court may recognize such a division of claims to artificial and refuse to compensate for the judicial expenses, referring to the abuse of plaintiff by procedural rights ().