In the framework of civil proceedings, it is often necessary to attract an expert. The legislation establishes the duties and rights of this specialist. They are set out in Art. 85 Code of Civil Procedure of the Russian Federation. The rights and obligations of a person acting as an expert are interdependent. In this regard, the legislator not only enshrined them in one article, but also indicated a real relationship between them. Consider further Art. 85 Code of Civil Procedure of the Russian Federation with comments 2016
Expert Responsibilities
As art. 85 Code of Civil Procedure of the Russian Federation, a specialist should:
- Accept the order of the court for production , perform a full study of the documents and materials transferred to him.
- Formulate an objective and reasonable conclusion. It must contain answers to questions posed to the specialist by the court. The conclusion is sent to the authority that initiated the study.
- Appear on the subpoena to participate in the meeting and answer questions regarding the examination performed and the conclusions made upon its completion.
P. 2 tbsp. 85 Code of Civil Procedure of the Russian Federation establishes special rules for the specialist. In particular, if the questions posed to him fall outside his competence, the documents and materials are insufficient or unsuitable for carrying out the research and drawing up a conclusion, the expert should send to the authority that appointed the procedure a reasoned message about the impossibility to make reasonable and objective conclusions. The notice must be in writing. The specialist must ensure the safety of information transmitted to him. He must return the examined documents and materials to the court with the application of a conclusion or notice of impossibility to give it.
Responsibility
If the expert fails to comply with the requirements of the authority that ordered the examination, to send the conclusion drawn up in the established manner within the time period determined by the court ruling, in the absence of a reasoned notice of the impossibility of timely investigation for the reasons given above, to the head of the competent institution, the staff of which the person is a member, or a penalty is imposed directly on the perpetrator. The amount of recovery is up to 5 thousand rubles.
Bans
As secures part 2 of Art. 85 Code of Civil Procedure of the Russian Federation , the expert is not allowed to:
- Carry out independent collection of materials for the study.
- Engage in personal interactions with parties to the dispute if this casts doubt on his disinterest in the content of the decision.
- To divulge information that became known to him in the framework of his professional activity, to report the results of the examination to anyone, except the authority that appointed it.
Special cases
The specialist and the institution performing the study cannot refuse to conduct the study within the time period determined by the court, due to the refusal of the party to pay before the examination. In this case, competent persons (institutions) should do as follows. They carry out the research, draw up a conclusion and a statement on the compensation of costs incurred. These documents are sent to the court with materials confirming the costs. The institution that appointed the examination shall decide on the issue of cost compensation, taking into account the rules 98 and 96 of the Code.
Rights
Art. 85 h. 3 Code of Civil Procedure of the Russian Federation indicates that the expert, to the extent that it is required to draw up a conclusion, may:
- Get acquainted with the materials related to the subject of study.
- To ask the judicial authority for additional information for the study.
- To ask questions to the parties to the dispute, to witnesses.
- Submit applications for the involvement of other experts in the study.
Art. 85 Code of Civil Procedure of the Russian Federation with comments
As the norm indicates, a specialist engaged by the court to carry out the examination, on the one hand, has the right to get acquainted with the materials of the dispute, ask for additional data, ask questions to witnesses and participants during the hearing, This is necessary to draw up an objective and reasonable conclusion. On the other hand, an expert has a number of obligations. He must accept the order of the court for production , carry out a study, answer questions properly, ensure the safety of materials, appear in a meeting on the agenda. It is worth saying that the previous Code did not impose such strict requirements. In particular, giving an opinion was seen as an opportunity, not an obligation of an expert. The former Code allowed the rejection of its preparation without any further explanation.
Art. 85 Code of Civil Procedure of the Russian Federation requires the expert to send a reasoned report to the court about the reasons why he cannot give an opinion on the materials studied.
The nuances of limitations
Due to the fact that in some cases procedural obligations are determined by direct prohibitions, in the second part of Art. 85 of the Code of Civil Procedure of the Russian Federation , it is established that a specialist cannot be independent in collecting materials, interact with the parties to a dispute, disclose information that he knows as part of his professional tasks and report the results of the study. Such requirements are well founded. The performance of any of the actions listed above may affect the comprehensiveness and objectivity of the study, as well as affect the interests of participants and other persons. The duties and rights of the expert are most fully reflected in the sectoral federal law No. 73. The normative act additionally states that a specialist cannot destroy, substantially change the characteristics of objects of research without the consent of the body or entity that appointed the procedure. With regard to the disclosure of information, the law emphasizes that among all the data, information that can limit the constitutional right of citizens constituting commercial, state and other protected secrets occupies a separate place.
Deadlines
Particular attention is paid in legislation to the obligation of an expert to send an opinion within the period specified in the court ruling on the appointment of the study. The rule established by Art. 85 Code of Civil Procedure of the Russian Federation , is associated with amendments to the first part of Article 80 of the Code. At present, the expert must carry out the study and send a conclusion taking into account the period specified by the court of general jurisdiction in the decision. But the specialist or institution conducting the study of the case materials may provide the court with a reasoned notice of the impossibility to conduct the procedure in a timely manner, due to the fact that the questions asked are beyond the scope of competence or due to the insufficiency / unsuitability of the facilities. In case of non-observance of the terms defined by the resolution, and in the absence of notification, the person responsible is fined.
The specifics of cost recovery
Currently, the law requires the expert to carry out the study even in the absence of advance payment by the parties. This rule eliminated the problems that existed in practice before. Prior to legislative changes, experts refused to carry out the study because participants could not pay for it. As a result, proceedings were suspended for a rather long time, which, of course, is unacceptable for the normal administration of justice. Today, all the costs incurred by the expert in carrying out the study in the absence of payment by the parties are subsequently reimbursed to him by decision of the authority that appointed the procedure.