As a general rule, enshrined in Art. 56 of the Code of Civil Procedure, the participants in the proceedings are charged with the burden of proof of all those circumstances to which they refer in their claims and objections. Exceptions to it are enshrined in Art. 61 Code of Civil Procedure of the Russian Federation. We will get acquainted with the comments to the article further.
The content of the norm
In our article we will consider Art. 61 Code of Civil Procedure of the Russian Federation as amended on 08/03/2018. In accordance with part 1 of the rules, circumstances that the court recognizes as well-known do not need proof.
In h. 2 Article 61 of the Code of Civil Procedure, it is enshrined that the facts established and indicated in a judicial act issued in a case considered earlier and entered into force are binding on the court. These circumstances are not subject to re-proof and contest in other proceedings, in which the same entities participate.
According to paragraph 3 of Article 61 of the Code of Civil Procedure, the facts established by an act of arbitration that entered into force are not subject to proof and cannot be challenged by persons if they were participants in the case considered by the arbitration.
A sentence that has entered into force is mandatory for a court considering a case on the consequences of unlawful actions of the subject in respect of which this sentence has been passed, on issues related to establishing the fact of a crime and the involvement of this citizen in it.
Circumstances certified by a notary public do not require proof if the authenticity of a document drawn up by a notary has not been refuted in the manner prescribed by Art. 186 Code of Civil Procedure, or not revealed a significant violation of the rules for notarial acts. This is stated in part 5 of this article.
Art. 61 GIC: comments
In the considered norm, facts are fixed that participants in the production may not prove. The court has the right to use these circumstances as the basis of its decision. If we analyze the norm 61 of the Code of Civil Procedure of the Russian Federation with the comments of lawyers, it can be noted that experts divide the facts cited in it into 2 groups: well-known and prejudicial. Among the first include the circumstances specified in the first part of the article. The second group consists of the circumstances given in hours 2-4. Meanwhile, there is another category of facts - recognized. They are enshrined in Art. 67 of the Code.
Well-known circumstances
Participants in the production, according to Art. 61 Code of Civil Procedure, may not prove certain facts if they are recognized by the court as well-known. If this does not happen, then the confirmation of the circumstances is carried out according to the general rules enshrined in Art. 56 of the Code.
Well-known facts are recognized that are accessible to a wide circle of persons, including the court, which has the right to recognize them as such. It should be noted that well-known is a relative category. Different subjects have different degrees of awareness of certain phenomena and events, and this is quite normal. So, for example, circumstances can be world famous, known only in Russia or in a particular region or municipality.
The degree of common knowledge in order to apply the provisions of Article 61 of the Code of Civil Procedure of the Russian Federation, the court indicates in the reasoning part of its decision. By this, the authorized body substantiates the grounds for exemption of participants in proceedings.
So, the fact that having a passport of a citizen of the Russian Federation allows a person to exercise a number of rights, including constitutional ones, is considered obvious and does not need confirmation. Without this document, in particular, it is impossible or, in any case, difficult to freely move, stay on the territory of Russia, choose a place to live, leave the Russian Federation and enter the state. A person who does not have a passport of a citizen of the Russian Federation cannot exercise his voting rights, he cannot be elected to municipal or state authorities.
Court ruling
If a judicial act was passed in a civil case examined earlier, the established by him and the circumstances indicated therein shall be binding on the court in another case. This means that re-proving them is not necessary. Moreover, they cannot be challenged.
Such circumstances are called "prejudicial" (from lat. Praejudicio, that is, "prejudice").
To understand this issue, we turn to the Decision of the Plenum of the Supreme Court No. 23 of 2003, in which the Court gives its comment. The Code of Civil Procedure, in 61 standards, refers to any decision adopted in accordance with Part 1 of Art. 13 of the Code. The court, therefore, can make an order, decision, determination, order of the Presidium of the supervisory authority. The participants in the case do not need to prove the facts established by such judicial acts in a new proceeding with the same subject composition if they have entered into force in the manner provided for in Articles 209 and 391 of the Code of Civil Procedure.
At the same time, the status in which these entities participated in the previous legal proceedings, according to which the circumstances were established by the decision that entered into force, does not matter. For the application of the provisions of Art. 61 Code of Civil Procedure of the Russian Federation is enough to be involved in the proceedings.
Nuances
Subjects who did not participate in a case in which circumstances were established by an effective decision shall have the right to challenge them. Accordingly, the evidence will be carried out according to the general rules established by Art. 56 of the Code. I must say that the wording of this norm practically reproduces the content of Part 2 of Art. 209 GIC.
Arbitration Proceedings
In the analysis of part 2 and part 3 of article 61 Code of Civil Procedure of the Russian Federation it is clear that exemption from the proof of facts established by the arbitration, differs from exemption from the need to prove circumstances, confirmed by the court of general jurisdiction. The difference is that only those facts that are established in the decision of the arbitration court will have prejudicial significance . The corresponding position is enshrined in paragraph 9 of the plenary resolution of the Armed Forces No. 23 mentioned above. The Supreme Court explains that the decision of the arbitration tribunal should recognize the act provided for in Art. 15 agribusiness. In accordance with part 2 of this rule, the decision is a judicial act rendered by the arbitration tribunal at the first instance in the proceedings on the merits.
Important point
If we turn to the terminology of the agro-industrial complex, then all acts are also adopted in the form of definitions and decrees. Moreover, only decisions can contain facts of prejudicial significance. They may be invoked in civil proceedings. The circumstances established by the rulings and decisions of the arbitration tribunals cannot have prejudicial significance.
Expert Conclusions
According to many lawyers, such a position arising from the provisions of Art. 61 Code of Civil Procedure of the Russian Federation and the rules of the agro-industrial complex, it seems not entirely correct. The fact is that legislation provides for the possibility of appealing against decisions. In the event of cancellation or change of the decision of the appellate, cassation / supervisory instance, the circumstances recognized earlier lose their prejudicial significance, since they cease to be established. Accordingly, production participants will have to re-prove them.
Additionally
The possibility of a citizen participating in arbitration is permitted by the current edition of the agro-industrial complex (Articles 27 and 33). Accordingly, the composition of the entities participating in the arbitration proceedings and the instance of general jurisdiction is also possible. Accordingly, if the composition of the participants will differ, then the circumstances established by the decision of the arbitration shall be established and proved in the general manner.
Civil proceedings in a criminal case
In a civil case on the consequences of the conduct of a subject in respect of which there is a sentence that has entered into force, 2 facts have precedent value: whether the action / inaction was committed and whether the person concerned was involved.
No other circumstances specified in the sentence are binding on the court. Accordingly, they are subject to proving in the general manner.
Given this when applying Art. 61 Code of Civil Procedure of the Russian Federation, the court, when deciding on the statement of claim arising from the criminal proceedings, is not entitled to discuss the guilt of the defendant. He can resolve the issue of the amount of compensation for the consequences that arose during the commission of an action / inaction of the perpetrator. In this regard, the instruction on confiscation of certain property from the defendant in the verdict does not deprive interested parties of the opportunity to sue for the removal of the arrest and the right to satisfy such a statement in civil proceedings.
When applying h. 4 Article. 61 Code of Civil Procedure, in the decision, in addition to referring to the verdict, it is also necessary to bring evidence from the civil case in support of the amount awarded. This, for example, may be about the degree of guilt of the victim or the property status of the defendant.
When deciding on compensation for material harm, the court shall not be bound by the amount specified in the sentence. Of course, the circumstances reflected in the decision on the criminal case can be used in the framework of civil proceedings, however, of prejudicial significance, by virtue of part 4 of Art. 61 GPK, will not have. The amount of damage, in turn, will be established by the authority considering the civil case in the general manner enshrined in procedural legislation.
In accordance with the CPC, the court makes a decision in the form of a decision, determination and sentence. The latter is an act reflecting the conclusions about the innocence or guilt of a citizen, sentencing or release from him. A sentence is passed by the first or appeal court.
Administrative offenses
I must say that in Art. 61 Code of Civil Procedure of Ukraine does not contain any instructions regarding the circumstances established by a judicial act in an administrative case. According to some lawyers, it is necessary to recognize their prejudicial significance. If this is not done, then, experts believe, the norms of the Special Part of the Code of Civil Procedure become meaningless and inactive. So, by virtue of Art. 215 Code of Civil Procedure, the court must suspend the proceedings if it is impossible to consider this case before the resolution of another criminal, civil, administrative case. This is necessary to complete the proceedings that had begun earlier and to use the judicial acts that have entered into force thereafter in order to recognize the circumstances of the circumstances established in them.
In this case, several quite logical questions arise. How can a case to be suspended affect another administrative proceeding? What are the consequences of the resumption of the proceedings? What will happen if production is not stopped at all? In such cases, there will be no interconnection and interdependence between cases. Then another question. Why in Art. 215 Code of Civil Procedure there is no indication of the need to suspend the case until the resolution of another dispute in arbitration proceedings?
Existing gaps are proposed to be addressed by using an analogy of the law. An appropriate approach is also supported by the sun. Thus, in its plenary decision No. 23 of 2003, the Supreme Court explains that in accordance with part 4 of Art. 1 Code of Civil Procedure, by analogy with part 4 of commented on Art. 61, it is necessary to determine the prejudicial significance of a court order / decision in an administrative case that has entered into force in the proceedings on civil law consequences of the conduct of the subject in respect of which the relevant judicial act was passed.
Conclusion
Proof is an essential tool for protecting rights and interests. To defend their position, participants in the proceedings must provide materials that reliably confirm the circumstances to which they refer. However, there are a number of facts that are not necessary to prove. For this, circumstances must be recognized by the court as well-known or prejudicial. Exemption from the proof of such facts greatly simplifies and speeds up legal proceedings.