One of the key guarantees for the implementation of the equal procedural rights of persons participating in civil proceedings is their awareness of the place and time of the meeting or the commission of a procedural action related to the proceedings. This ensures the principle of competition, according to the Code of Civil Procedure and the Constitution.
Litigation and challenge in civil proceedings
No case can be considered without prior notice to the parties of the place and time of the hearing. In case of non-appearance of persons in respect of whom it is not known about their proper notification, the proceedings shall be postponed. These findings follow from the provisions of Articles 155 and 167 of the Code of Civil Procedure.
The hearing of a dispute without proper judicial notice to the participants is recognized as an unconditional reason for the cancellation of the adopted decision, regardless of the arguments of the submissions or complaints submitted to the appeal. This rule is enshrined in article 330 of the Code of Civil Procedure. Similar consequences occur when non-compliance with the provisions of Art . 113 Code of Civil Procedure of the Russian Federation during the review of decisions in the cassation instance.
Representative Notification
In Art. 113 Code of Civil Procedure of the Russian Federation and other norms of the Code, containing an indication of the notification of participants in the proceedings, there is no obligation for the court to notify representatives of the parties about the place and time of the hearing. The procedural position of these entities is regulated by the norms of Chapter 5 of the Code of Civil Procedure.
Representatives are deemed to be notified by the persons on whose behalf they appear in court. However, this provision does not apply to legal representatives. Judicial notices and calls should be sent to them directly taking into account the provisions of Article 37 of the Code of Civil Procedure (Part 1).
Parties to the case, third parties and other entities involved in the proceedings, the list of which is fixed in Art. 34 of the Code, notified of the day of the meeting and if there is a motion to consider the dispute in their absence.
Notification Methods
As a rule, the notification of the parties and other persons involved in the proceedings is carried out using judicial subpoenas . They are sent by registered mail with a notice of delivery or delivered personally to the relevant entities.
Urgent judicial notices and calls , as well as notifications in remote areas where a citizen resides or the organization is located, can be sent by telegram, fax. Legislation allows the use of telephone and other means of communication, ensuring the recording of the contents of the notification and the fact of its delivery.
Deadlines
Clauses 2 and 3 of the plenary Decision of the Supreme Court No. 13 of June 26, 2008 clarify that in the preparatory part of the proceedings it is necessary to establish whether court notices were sent to those who did not attend the meeting, in compliance with the requirements provided by law.
It happens, however, that the parties to the proceedings were notified, but at a time insufficient for a timely appearance at the hearing. This situation is due to the fact that when sending the subpoena , the remoteness of the place of residence of the persons involved in the case was not taken into account. The Plenum of the Armed Forces in its Resolution clarifies that when setting the time of the meeting, the court must take into account the degree of awareness of the subject about the circumstances of the proceedings, the ability to prepare for the proceedings and the complexity of the dispute.
In the event of a failure to appear at the hearing of the person to whom the judicial notice was duly sent, the question of examining the case on its merits in its absence is decided taking into account the provisions of Articles 167 and 233 of the Code.
Agenda direction
With the help of this document, a court expert , translator, specialist and witness are called. It is worth noting that the absence in the case file of information about the summoning of these persons may serve as the basis for the postponement of the hearing if they do not appear.
Experts, translators, specialists, as well as subjects involved in the proceedings as witnesses, shall be sent to the court no later than the next day after determining the date and time of the hearing or the completion of the procedural action.
As established in the Instructions for clerical work in the regional instances, the summons is sent to the addressee in accordance with the Rules for the provision of postal services. They are approved by Government Decision No. 221 of April 15. 2005 year
The agenda, a sample of which is presented in the article, is sent in a registered letter with notification. The form of the latter is attached to the letter, and on the front side is marked “Judicial”.
Delivery Features
The legislation does not establish specific deadlines for sending judicial notices and challenges in civil proceedings . The norms only indicate that the participants in the proceedings should have enough time to prepare for the hearing and timely appearance at the meeting. At the same time, the term should be calculated so that the notice of delivery of the judicial notice is returned to the court before the start of the proceedings.
Given the above, the authority should take into account not only the remoteness of the citizen's place of residence (location of the organization), but also the time for delivery of correspondence by the postal service.
Nuances
The provisions of paragraph 35 of the Rules for the provision of postal services indicate that information about the impossibility of delivering a judicial notice to the addressee is sent to the court one month (and in some cases more) after receipt of the document by the post office. This period is often beyond the period provided by law for the consideration of the dispute on the merits.
Departure not claimed by the addressee and unreasonably long failure to inform the court about this fact by the operators leads to a delay in the process. This is especially true in cases where the plaintiff and defendant are in different parts of the country. Indeed, according to the law, most cases are considered at the location of the defendant.
Meanwhile, the Rules provide for several cases when information about the inability to deliver the summons to the addressee is sent to the court immediately. These include:
- Temporary absence of the recipient. The subject who delivers the correspondence must indicate in the notification the place and time of departure of the addressee, the period of his return, as well as the source of this information.
- Lack of information about the recipient's place of stay.
- The recipient refused to accept the notice. The subject who delivered the correspondence must put a corresponding mark in the notification.
Address
Notices shall be sent to the parties to the case at their place of residence or at the address indicated by them (their representatives) in the lawsuit, application, statement.
With regard to the place of residence, it is necessary to take into account the provisions of Article 20 of the Civil Code and Art. 3 Federal Law No. 5241-1. As indicated in the normative act, citizens are registered at the place of their stay or residence within the Russian Federation.
If a citizen does not live at the address to which the notice is directed, it is allowed to send a notice to his place of work.
As for the legal entity, the notice is addressed at its location. It, in turn, is determined taking into account the provisions of Article 54 of the Civil Code and Art. 8 FZ No. 129. The location of the organization is the address at which it is registered, unless legislation or constituent documentation provides otherwise.
A notice to a legal entity can also be sent to its representative, if the application contains information about him and the corresponding request.
additional information
The forms of calls and notifications provided for in Article 113 of the Code of Civil Procedure apply to foreign individuals and legal entities, unless another procedure is established by the international agreement of the Russian Federation with the corresponding country.
For example, according to the terms of the agreement between Russia and India on the provision of legal assistance and participation in legal relations in commercial and civil matters of 2000, the delivery of summons is carried out in accordance with the legislation of the requested state. If the notice is not in the language of this country or the translation is not attached to it, delivery is carried out if the recipient agrees to accept such a document.
If the subpoena is not accepted, it shall be deemed not delivered.
In the request for notification, the addressee shall indicate its exact address, the name of the notification. A confirmation of delivery shall be issued in accordance with the rules that apply in the requested State. This document shall indicate the place and time of receipt, information about the person to whom the notification was handed.
Sample Agenda
This document must contain the details provided for in Articles 113 and 114 of the Code of Civil Procedure. Among them:
- Name and address of the court in which the case is considered.
- The time and place of the proceedings.
- Name of the person (F. I. O. citizen) summoned to court.
- Indication of the status in which the subject is invited to the authority.
- The name of the case in which the person is notified or called.
In addition to the information indicated, the subpoenas also contain proposals to the persons involved in the proceedings to provide evidence in the case that they have. The document also indicates the consequences of failure to provide materials and information that are essential for the resolution of the dispute, the obligation to timely inform the court of the reasons for failure to appear is explained.