The involvement of a specialist in a civil proceeding is indispensable in resolving issues for which a judge cannot find answers in a generally accessible way. This may be due to cases of violation of the rules for the operation of facilities, equipment, non-compliance with local acts, causing harm to citizens as a result of accidents, improper treatment, food poisoning, etc.
This can also include cases when the court needs clarification regarding the understanding of the essence of phrases, terms used in the results of the conclusion, case materials.
Legal role in civil proceedings
The specialist’s participation in the civil process is determined by the need to provide additional specific explanations and consultations. Also, his services are addressed when questions arise of a technical nature for assistance in the process of consideration by the court of case materials. Among the participants in the meeting, who are involved in providing an independent assessment, also include an expert. For a long time, the specialist in the civil process did not stand out as a separate link. The need to attract him was more often demanded in the criminal process, only in the 2000s they began to separately resort to consultations in civil proceedings.
From a legal point of view, a specialist should interpret scientific provisions, reference data relating to various spheres of human life. In some cases, technical support services may be required:
- Conducting an independent assessment, examination.
- Inspection of material and written evidence.
- Play video and audio recordings.
- Interrogation of witnesses.
- Interim measures regarding the safety of evidence.
The involvement of a specialist may be required not only in the process of resolving a dispute, but also after a court makes a decision. For example, in the part of his appeal, if the deadline for this has not yet expired.
In some cases, it is allowed to involve a specialist at the stage of forming a statement of claim. For the plaintiff, this is a good opportunity to correctly draw up a document. A correctly executed document has a better chance of a quick consideration and a fair resolution of the dispute. The court may also find that the evidence presented is sufficient to not involve an expert.
The requirements put forward to the participant in the process
The specialist and expert in the civil process must have certain knowledge in the field of art, science, craft, technology. Consequently, this implies the requirement for a special education that allows them to be considered competent in their field. The procedural legislation also enshrines the condition on the need for a specialist to provide data on experience, place of work.
If we talk about the need to involve a doctor or teacher, then the original certificates of certification of qualifications and diplomas of obtaining specialized education are provided. Based on these documents, one can judge their competence.
What rights does
To date, there is no clear reinforcement as to what the rights of a specialist are in the civil process. However, examining the procedural legislation, scientific practices, we can distinguish from the most common:
- The right to familiarize yourself with civil case materials.
- Participation in or rejection of the hearing.
- Familiarization with the protocol of the court session and others concerning its participation, making comments, statements, which should be reflected in the case file.
- Receiving a monetary reward for a consultation, participating in a pre-trial investigation.
- The right to seek help from a translator.
- The right to reimbursement of expenses for appearing in court.
A specialist may speak in court only at the invitation of a judge. If the parties to the civil procedure independently expressed a desire to involve a specialist, but he was not summoned to the court in an appropriate manner, then he is not entitled to participate in the meeting.
Responsibilities
In the regulatory documents you can find only generalized data on the rights and obligations of the specialist in the civil process. As for the rights, they were considered above, in terms of duties, these are:
- Giving explanations and consultations only within the framework of the civil case under consideration, in which he is one of the participants.
- At the request of the court or at the initiative of one of the parties, on the basis of an appropriate request, to appear at the meeting.
- To assist the court in identifying, recording, seizing evidence with the help of its knowledge.
- Demonstrate competence in the field that is necessary in the framework of the judicial process.
The specialist should not make any assumptions, conclusions regarding the case under consideration, give an assessment of the damage caused. The main duty is to help the court, give the right advice, clarification of the merits.
Area of ​​responsibility
Attracting a specialist in a civil procedure gives him access to the case file, so when it comes to liability, you need to know that it occurs if information is disclosed that:
- Relate to state, commercial, banking secrets.
- Become known during a closed court hearing.
- Concerning adoption or adoption.
Before the court session begins, participants in the process are warned of responsibility and possible sanctions for violation of these standards. This measure is caused by the need to exclude the provision of false or so-called perverse evidence. This can serve as an obstacle to an objective review of the case file, adversely affect the legality and legality of the decision.
Professional and procedural roles should not be mixed. This means that a specialist cannot act in one case, including as an expert.
Documentary fixation
The written opinion of the specialist in the civil process must be executed in compliance with the requirements of the procedural law. The need to build evidence base in this way is due to their special experience, education and competence. The judge, participants in the process turn to a specialist and pose questions to him, the answers to which can only be given by a professional. Moreover, he can be guided by reference or scientific literature, normative documents, technical schemes.
In judicial practice, the involvement of an expert is more common, since he is criminally liable for giving false conclusions. In turn, the specialist does not document for providing distorted information. Therefore, it cannot be brought to justice.
The written conclusion of a specialist in civil proceedings in the presence of an expert decision allows to refute or confirm the conclusions set out in it. This may lead to the need for re-examination or the refusal of its appointment. For participants in the process, the opinion of a specialist is as significant as an expert. Moreover, all petitions must be filed as part of the current hearing, and not separately through the office.
This moment may indicate the objectivity of the experts involved, their competence in the framework of the civil proceedings under consideration. If the testimony of a specialist is recorded in writing, we can say that his conclusions are equated with expert. This is indicated by Art. 188 Code of Civil Procedure of the Russian Federation.
Interrogation
Art. 188, part 4, Code of Civil Procedure of the Russian Federation provides for such a moment as the interrogation of a specialist. In a civil proceeding, first of all, questions can be asked to him by the plaintiff and his representative, if he was invited by them. This also applies to cases where the participation of a specialist was initiated by a judge. During the interrogation at any stage of the trial, the judge may ask a question to answer.
Also, a specialist in civil proceedings may be present during the interrogation of witnesses. This is done in order to obtain additional comments on issues that have arisen in the field of activity in which the specialist understands. During the trial, participants in the process may need clarifications that fall within his area of ​​competence.
A separate category of participants in the process is minor children. During the meeting, knowledge, pedagogical and psychological experience, as well as specialist advice in a civil process that has an appropriate education may be required. This may be a teacher-psychologist who is attracted to appear for questioning or a court session. The legislation does not fix minimum age limits. Naturally, a minor must be able to freely express his thoughts and answer questions. As for the maximum age value for attracting a teacher as a specialist in the civil process, here we are talking about fourteen, in some cases sixteen years.
During the meeting, the specialist allows you to establish psychological contact between the participants in the process and the witness, who is currently a minor. Special attention should be given to deaf-mute witnesses, as well as to persons who have speech impairments and mental deviations. In this case, we can talk about attracting a specialist with a medical education, for example, a psychologist, psychiatrist.
Interim Measures
In some cases, before the court session, the properties of material evidence may undergo changes, which in the future will serve as an obstacle to their further study. Participants in the process may require the court to take measures to ensure the safety of the evidence presented. At the legislative level, this right is regulated by Art. 64 Code of Civil Procedure of the Russian Federation. As a rule, the role of security is assumed by the judge, conducting their inspection.
Material evidence that relates to the category of security: perishable products, evidence of pollution of the reservoir, disturbance of the fertile soil layer. The judge may conduct a review of the written material evidence both on the spot and in the courtroom. Moreover, a specialist in civil proceedings:
- guided by the norms of the Code of Civil Procedure (Articles 181, 183-184), paying attention to the signs and properties of the inspected object;
- gives advice on the need for examination and comments on why it is necessary to fix certain moments of the examined material evidence;
- makes schemes, plans;
- carries out photofixation, audio and video recording.
Specialist in the courtroom
The participation of a specialist in a civil process is mandatory when he is summoned to court. The reason for the refusal cannot be the fact that he considers himself incompetent in the case under consideration, or the desire to recuse himself. The absence of a specialist at a meeting without good reason may result in a fine.
The case of self-withdrawal or withdrawal is possible within the framework of Art. 18 Code of Civil Procedure of the Russian Federation: being in official or other dependence on the participants in the process or their representatives. A similar question is resolved by the judge, as a result of which an appropriate determination is made.
The evidence given by the specialist is not evidence and can only be advisory in nature. However, the judge may take them into account. A specialist, unlike an expert in civil proceedings, is not warned of criminal liability and does not sign a corresponding receipt before the court session. If his testimony is recorded on paper, then they must be attached to the case. Oral comments are reflected in the minutes of the hearing.
The difference between an expert and a specialist
The participation of a specialist does not affect the research and study, obtaining evidence related to the civil case under consideration. This is the first difference from his expert. The main duty of a specialist in a civil process is to give advice, provide background information that does not require a study (second difference). The expert must obtain information or information that will serve as evidence for resolving a civil dispute, helps to identify new circumstances of the case.
The results of the specialist’s activities are not documented by him, and this is the third distinguishing feature. In practice, an explanation, including an experimental one, is recorded as the result of an interrogation, which can be attached to the case as evidence.
The specialist is not criminally liable and does not sign the relevant document before the court session. The expert is responsible for giving false testimony, may be punished under the article of the Criminal Code.
Based on the foregoing, the expert and specialist have different rights and obligations, perform different functions from each other in the framework of civil proceedings. This feature should not affect the possibility of mixing different positions of two entities within a single institution - the use of knowledge in practice.