Art. 242 Code of Civil Procedure of the Russian Federation describes the reasons for canceling a decision made in absentia. What are they? What does the statement say in this regard? We will touch upon some features of absentee proceedings and consider how the defendant can defend himself.
The essence of correspondence production
Art. 242 Code of Civil Procedure of the Russian Federation is placed in the section on correspondence production. It consists in making a decision without the participation of the defendant with the consent of the plaintiff. The judge is guided only by the materials and arguments provided by the plaintiff.
The procedure is permitted subject to the availability of evidence from the defendant. If there are several defendants in the case, and one of them appears at the meeting, the consideration is carried out in a general manner.
Features of the judgment
The case is examined in a general manner. The arguments of the representative of the party are heard, then the judge, after having completed all the procedural actions, makes a decision.
I must say that they resort to extramural proceedings if there is no need to conduct an examination, to demand evidence, or all these actions have already been completed. The judge enters the deliberation room, where he makes a decision, after which he announces it to the plaintiff.
The introductory and resolutory parts are voiced. The second party is sent the full text of the court decision explaining the procedure for its cancellation and the time limit for this.
The text often only refers to Art. 242 Code of Civil Procedure of the Russian Federation, without specific explanation of what is a sufficient reason for this.
Cancellation Features
Art. 242 Code of Civil Procedure of the Russian Federation and other provisions of the code give the right to declare the cancellation of the decision in absentia in a special manner only to the defendant. Within 7 days from the date of issuance of a copy of the judicial act to him, he is entitled to submit an application by sending it by mail or transferring it to the court office in person or through a representative.
If the application has not been submitted, after the end of the one-week period, the time is taken to forward the complaint to the appellate court (a month from the date the decision was made in full).
If the defendant nevertheless filed an application, and the judge did not agree with him, the term for the appeal is counted from the moment the judge declares his refusal to request to cancel the decision and resume the proceedings.
If we take into account Art. 242 Code of Civil Procedure of the Russian Federation, the appeal of the decision in absentia is carried out in two stages.
What is the reason for the cancellation
There are two groups of grounds: violation of the requirements of substantive and procedural law, because of which decisions are changed or canceled in a court of second instance.
The second group of grounds relates to in absentia production:
- respect for the absence of the defendant at the hearing;
- could not inform the court about the impossibility of arriving at the hearing;
- drew attention to circumstances relevant to the case;
- provided or asks for help in providing evidence that is significant.
Note that the respectful absence from the meeting and the presence of significant evidence should be present at the same time.
How to write a statement
In order to achieve cancellation, appropriate reasons are needed, violations of procedural and substantive law are not enough. They are relevant under one condition, if they relate to the procedure for notifying a party to a process of a meeting.
If, first of all, it is referred to the violations committed by the court, which serve as the basis for the cancellation of the decision in higher instances, the court will refuse to cancel its earlier decision.
Respect for failure to appear
In Art. 242 Code of Civil Procedure of the Russian Federation with comments several factors are noted:
- being on a business trip;
- illness (subject to being in the hospital and inability to attend the meeting);
- illiteracy (inability to read, write);
- another reason that the court considers valid.
A complete list cannot be named, it is not. The circumstances of the applicant and the judge's opinion decide everything.
Significance of evidence
Available materials should matter. For example, a lawsuit has been filed to recover funds. The defendant states that he paid the debt and he has a receipt on their transfer to the debtor.
The law does not say anything specific, only a general reservation has been made. It implies the ability of new materials to change the judge’s opinion of the case.
The code says about the evidence already available, so it’s difficult to talk about the appointment of an examination by the court. At the same time, it is not forbidden to attach to the application materials of examinations and studies conducted by relevant institutions. The court cannot reject them automatically.
In a statement of annulment of the decision, the defendant has the right to ask for the interrogation of witnesses. He needs to write what they will tell.
Judicial practice under Art. 242 Code of Civil Procedure of the Russian Federation
What exactly is the reason for the cancellation of the decision in practice, we have already noted. But there is one more important question.
Defendants, skipping deadlines, ask the courts to restore them, citing good reasons. In the case of a 7-day period, the Supreme Court clarified that it is preventive and cannot be restored. Thus, the defendant only needs to file an appeal.