Correspondence proceedings in the civil process have existed for a long time. In legal publications, it is called a simplified procedure. During all this time, this institution has established itself as an effective legal instrument.
The concept and importance of correspondence production
The defendant’s awareness of the fact that the requirements presented to him by the plaintiff will be satisfied if he evades without good reason, shows passivity, should encourage him to be active. Existing types of civil proceedings involve the use of statutory powers and procedural rights from the very first hearing. The activity of the parties helps to speed up the consideration of cases. In absentia proceedings and in absentia decisions can be interpreted as one of the options for the consideration of the dispute on the merits.
It must be said that the consideration of the case in this way involves some one-sidedness when the judge perceives the circumstances of the dispute. Accordingly, this may affect the opinion of the authorized person, the content of the act. In this regard, according to the principle of equality, the defendant should be able to demand the cancellation of the decision subject to a number of conditions. In absentia proceedings in a civil proceeding is a form adapted and necessary for the realization of the right to defense in court of a subject who has applied for a settlement of a disputed case, when it is not possible to observe the principle of adversarial proceedings.
Essence
The fact that one of the parties to the dispute is considered in the proceedings is the basis for the proceedings in absentia. Failure to show up significantly affects the course of the procedure. It entails the exclusion from the proceedings of those actions by which the right to defense in court is realized. The features of this form are that it does not involve verbal debate between participants. As part of the procedure, competition is present, but it is not fully manifested. Verbal clarification is provided by only one side. Only she provides evidence in a civil proceeding. In the absence of one of the participants, although not fully implemented, the judicial procedure. The substantive, procedural issues are not resolved in a comprehensive, but in a unilateral discussion.
This, however, does not mean that the use of this form of consideration of the case will not achieve the objectives of the proceedings. All types of civil procedure involve the study of the submitted materials. In this regard, even in the absence of one of the parties at the meeting, the court will issue a decision in accordance with the information studied. A person evading participation in proceedings must be aware of the importance of absentee proceedings. This form is not intended to infringe on the rights of a non-appearing defendant. It is aimed at resolving the dispute in accordance with the available evidence at the optimum time.
Important point
The concept of absentee proceedings implies undoubted participation in the proceedings of the plaintiff. A clear, positive initiative should come from him. If the plaintiff does not appear at the hearing, the court always has doubts about his desire to support the claims in their original form. In some cases, we can even conclude that the side renounces its claims. In this regard, the absentee proceedings in the civil process due to the failure to appear at the meeting of the plaintiff contradicts the dispositive principles of legal proceedings. In the absence of this party, the impetus for the start of the proceedings should be given by any other party to the dispute. If neither the defendant nor the plaintiff appeared at the hearing, then only the court remains. The legislation of the Russian Federation does not provide for an initiative of the court in the proceedings, since otherwise it would contradict the role of this body in the procedure.
Absentee Response
It can be viewed from various angles. For example, the defendant’s failure to appear indicates a denial of the claim. If this statement is true, then evading participation in the proceedings acts as a means of protection that is consciously used by the person. However, it seems that such an opinion cannot be considered correct. In the event of a failure to appear, the defendant can probably rely on the judge independently, using the legislation of the Russian Federation, to derive from the submitted case materials all admissible objections to the requirements.
If the consideration of the case takes place in the absence of a party that is not aware that a lawsuit has been brought against it, then there is a violation of its rights. This means that this form of "care" of the court about the defendant is fully justified. The trial should not be carried out in the absence of a participant not notified of the meeting. If we consider failure to appear as a recognition of the claim by the defendant, then such an opinion, in fact, acts as a charge of the party without examining the merits. This situation contradicts the very concept of absentee production.
Summarizing these provisions, we can say that none of them can be determining the nature of the considered form of legal proceedings. In addition, it must be borne in mind that given the variety of probable reasons why the defendant is not at the hearing, the true circumstances of his failure to appear to the court are unknown.
Submission of supporting documents
Evidence in a civil proceeding is key when considering substantive cases. They reinforce the requirements of the plaintiff, substantiate the words of the defendant. In some cases, an oral explanation is needed to better understand the problem. Not all evidence in a civil proceeding can be accepted without explanation. In addition, situations arise where for one reason or another it is not possible to submit supporting materials. In this case, an oral statement by the party about their availability is extremely important. When applying, the court has the right to request the evidence. In the civil process, the key role is played by notifying individuals of the scheduled hearing. Timely notification of the participants allows them to properly prepare for the proceedings. Accordingly, they have the opportunity to collect the necessary materials and submit them to the court.
Notice
The Code of Civil Procedure of the Russian Federation (with comments) indicates that the period for notifying the defendant should be determined in each case, taking into account the specifics of the case, the parties' awareness of the circumstances of the dispute, and the possibility of properly preparing for the hearing. Timely notification of the date, time and place of the proceedings is mandatory even when the participant requested that the dispute be considered in his absence. In accordance with this, deciding whether recognition defendant duly notified, the court must establish:
- Which notification method was chosen.
- Whether a notification has been sent in advance.
- Is the notice drawn up correctly, is there any mandatory details provided for in the law.
- Whether a notice was given in person, whether it was done in a timely manner.
- Have the court received documents confirming the receipt of the notice (depending on the method of sending).
Conditions
The Code of Civil Procedure of the Russian Federation (with comments) provides the circumstances, depending on which it becomes possible to carry out the case in the absence of the defendant in establishing the fact of his failure to appear, if he was duly notified. Conditions can be classified as follows:
- Mandatory. Their observance is necessary in the proceedings of each case.
- Optional. Their compliance depends on the circumstances that complicate the subject composition.
As one of the prerequisites, according to which it becomes possible to conduct an absentee proceeding, the Civil Procedure Code refers to the absence of a request from the defendant to consider the dispute without his participation. In judicial notices sent to the parties to the case, it is proposed to submit all supporting documents, the consequences of their failure to appear and non-appearance at the meeting are indicated, the obligation to state the reasons why the presence is not possible during the proceedings is explained. Along with this, the judge sends a copy of the claim to the defendant, and the plaintiff - a copy of the defendant’s explanations, if any.
The second prerequisite, allowing to consider the possibility of starting an absentee proceeding, the Civil Procedure Code refers to the non-appearance of the party to which the claims are made.
The third circumstance is the defendant’s failure to report on the reasons for his absence from the meeting and the absence of a request to consider the case without his participation.
The fourth condition is the consent of the plaintiff to hear the case in absentia proceedings. Clarification of this fact acts as a manifestation of the principle of dispositivity. If the plaintiff agrees to the dispute in the absence of the defendant, the court must explain the consequences of such an action. In particular, the claimant will not be able to change the subject and the grounds of his claims, to increase the volume of claims. The defendant, in turn, receives the right not only to appeal, but also to cancel the decision in absentia. In the absence of the plaintiff’s consent, the court adjournes the meeting, notifying the time, date and place of the new hearing. Only in the presence of these conditions is absentee proceedings in a civil process allowed.
Case trial
The procedure for absentee proceedings provides for the consideration of the subject, which the defendant was notified in a timely manner by sending him a copy of the claim and the attached documents that justify the requirements. In this case, in the absence of notification of this participant about the change in the claimed claims, the court cannot consider the case even according to the usual rules. Otherwise, this would be contrary to the principles of equal rights and competitiveness of the parties.
Thus, if the plaintiff changes the grounds or subject of the claim if the defendant fails to appear, the proceedings must be rescheduled, and the latter must be sent a new notification in compliance with the provisions of Art. 114 GIC. If he does not appear at a new meeting after it has been postponed, a dispute shall be subject to the conditions provided for in Art. 233 of the Code, may be considered in its absence.
Court ruling
The question of the possibility of holding an absentee proceeding should be discussed at the preparatory stage of the meeting after checking the presence of the participants in the hearing, presenting the composition of the court, explaining to the persons their duties and rights. The result of establishing the opportunity to start the proceedings in the absence of the defendant is made out by definition. It can be carried out without removal into the deliberation room. The definition is recorded in the protocol, which reflects the entire course of the discussion of the issue. The content of the act must comply with the requirements of Art. 225 codes.
Correspondence decision
The content of such a ruling, as well as that issued during the traditional hearing, must comply with the requirements of Art. 198 of the Code. The decision must include an introductory, descriptive, motivational and resolutive part.
The first section indicates the place and date of adoption of the act, the name of the court, its composition, the secretary of the meeting, other persons who took part in the case, the subject of the proceedings or the stated claim.
In the narrative there are claims of the plaintiff, objections received from the defendant. Explanations of other parties to the proceedings are also provided here.
The motivation part reflects the circumstances established in court, evidence in accordance with which conclusions are drawn up, arguments based on which certain materials are rejected. This section should contain references to the norms by which the authorized person was guided in the adoption of his decision. In case of rejection of claims in connection with the recognition of the reasons for missing the procedural period as invalid, only the establishment of this fact is indicated.
In the resolutory part, in addition to information on the resolution of the dispute on the merits, on the time and procedure for appeal, there should be clarifications on the rules for submitting an application for review of a decision. The decision shall enter into force upon the expiration of the terms provided for its contestation.
Effects
After the decision in absentia enters into force, the participants and third parties in the case, their successors, cannot again make the same claims in court on the same grounds between the same parties. It is not allowed to contest established legal relations and facts in other procedures. An absentee decision is as powerful as any other. Nevertheless, according to the decision, which entered into force, before the adoption of which all objections and circumstances have not been investigated and established, doubts arise. The rules do not provide for a mechanism to ensure the inevitable verification of a decision with the right to express dissent on the merits or declare cancellation.
Appeal
It acts as an additional guarantee for the defendant. The law provides for the possibility of sending a statement to the court to annul a decision with evidence of the validity of the reasons why he could not attend the hearing.
In accordance with the rules in force today, a decision may be canceled solely at the initiative of the defendant. If the application is satisfied, the consideration of the case shall be resumed on the merits. If the defendant does not appear at a new meeting and upon notification, the decision in absentia is duly issued. Repeated appeal is not allowed. Production begins again. Upon cancellation, only the decision itself is recognized as invalid, but not the plaintiff’s explanations and other materials on the case, which were collected and presented in previous hearings. Both parties are entitled to present new evidence. The plaintiff also has the opportunity to commit acts that are aimed at disposing of the subject of the dispute.
Conclusion
The cancellation of the decision in absentia is allowed if the court establishes the validity of the reasons for the defendant's failure to appear. They must be supported by relevant documents. In Art. 242 Code of Civil Procedure established the basis, in accordance with which the decision in absentia may be canceled. The presence of only one of them does not imply recognition of the invalidity of the decision.