The current legislation enshrines the rules of the court, ensuring the correct and timely resolution of cases. Their observance contributes to the implementation of the procedural tasks assigned to the judicial system. Moreover, the court system is constantly evolving, methods and means of conducting proceedings are being improved, and its stages are being adjusted. One of the most important stages of legal proceedings today is the preparation of the case for hearing. The main stages of this stage are considered in Art. 148 Code of Civil Procedure of the Russian Federation. We will familiarize ourselves with the comments and features of the application of the norm below.
The content of the article
According to Art. 148, the tasks of preparing the case for trial include:
- Clarification of circumstances relevant to the proper resolution of the dispute.
- Definition of a normative act, which must be guided by when considering a case.
- Establishment of the nature and type of legal relationship of the parties.
- Clarification of the issue of the composition of the subjects involved in the dispute, other persons involved in the proceedings.
- Submission of necessary evidence by subjects.
In addition, during the preparatory phase, measures are taken to reconcile the parties.
Norm 148 Code of Civil Procedure of the Russian Federation: comments
The implementation of the procedural tasks enshrined in the article ensures timely and correct resolution of the case. They have a close relationship with each other and reflect the key areas of activity not only of the judge, but also of other actors in the preparatory phase.
According to the provisions of h. 1 Article. 12 Code of Civil Procedure, legal proceedings in Russia are carried out on the basis of equality and competition of the parties. Each party to the dispute, in accordance with Part 1 of Art. 56 of the Code, must prove the facts to which it refers and presents as the basis of its claims or objections, unless another rule is fixed by law. At the same time, the procedural norms reflect the duties of the court itself in the adversarial process.
Preserving impartiality, objectivity, independence, the court directs the procedural activities, provides a solution to the problems of preparing the case. Art. 148 consolidates their general list. The solution to each problem involves the commission of certain actions by the judge. So, he must explain to the participants in the process their duties and rights, warn about the consequences of certain actions or inaction. Of no less importance is the obligation to provide assistance in the exercise by subjects of their rights.
The activity of the court should be focused on creating conditions for a full, comprehensive study of the evidence presented, identification of factual circumstances, the correct application of the rule of law in resolving a dispute.
On the basis of the objections and requirements of the parties to the case, taking into account the legislation to be applied, the court establishes circumstances relevant to the settlement of the conflict. Moreover, he has the right to invite the subjects to provide additional evidence.
According to Art. 148 Code of Civil Procedure of the Russian Federation, the task of preparing the case for trial is the reconciliation of the parties. Undoubtedly, it is far from always being realized. Nevertheless, the court is obliged to take all possible and permissible measures by law for the parties to conclude a settlement agreement. This method of conflict resolution is considered the most economical and reasonable.
Statement of evidence
Analyzing Art. 148 Code of Civil Procedure of the Russian Federation, as amended on 04/03/2018, it can be noted that the first and second tasks, reflected in the norm, are closely related to each other.
Activities aimed at clarifying the circumstances relevant to the resolution of the dispute, involves mental work on the formulation of the subject of evidence. To determine it correctly, it is necessary, in turn, to establish the nature of relations between the parties, as well as the law that will be used to resolve the conflict.
However, without establishing the factual circumstances that should be included in the subject of proof, it is impossible to correctly determine the legal relations between the subjects and the rule of law to be applied. From this it follows that indicated in Art. 148 Code of Civil Procedure of the Russian Federation actions cannot be carried out separately from each other.
Important point
The legal facts to be proved, the judge establishes with the participation of the parties, as well as other persons involved in the proceedings. It must be borne in mind that these subjects can be mistaken about the subject of proof. However, the judge is not strictly connected with the circumstances to which they point. Taking into account the substantive law, he has the right to include in the content of the subject of evidence additional circumstances, to exclude any existing facts from it, if he considers that they are not relevant to the dispute.
Determination of the composition of persons
As practice shows the application of the provisions of Article 148 of the Civil Procedure Code of the Russian Federation, often court decisions are canceled due to failure to fulfill the task of establishing a possible subject composition of the proceedings. The list of persons involved in the case and having a public or personal interest in its resolution is given in Art. 34 of the Code.
In order to ensure a timely and correct trial, the judge, taking into account specific facts and circumstances, must accurately determine not only the subject composition of the parties, but also other persons involved in the process. It is, in particular, about representatives, witnesses, experts, translators, etc.
Evidence
The specifics of court status in adversarial proceedings should be taken into account when implementing one of the most important tasks enshrined in article 148 of the Code of Civil Procedure of the Russian Federation. It's about providing the necessary evidence. It is the duty of the judge, already at the preparation stage, to create the proper conditions for a full and comprehensive study of circumstances and facts that are relevant to the consideration and proper resolution of the dispute.
Evidence may be presented not only by the parties, but also by other persons involved in the case. However, the judge, taking into account the subject of proof, the nature of the legal relationship between the entities and the substantive rules governing them, clarifies who exactly has the burden of proof, what arguments should be brought in support of his position. Of no small importance for the implementation of not only this, but also other tasks enshrined in Article 148 of the Code of Civil Procedure of the Russian Federation, is the court's indication of the consequences of failure to provide any information.
Court duty
Of course, during the preparation of the case, it is necessary to establish whether there are obstacles to obtaining evidence, and if so, which ones. The court is obliged to provide comprehensive assistance in collecting and presenting information relevant to the process.
Reconciliation of the parties
There are several principles on which any trial is based. All of them are enshrined in the Code of Civil Procedure. In Art. 148 among the tasks facing the court at the preparatory stage is the reconciliation of the parties. By virtue of the principle of dispositiveness, production participants are already at the preparatory stage entitled to settle their legal relations by concluding an agreement. If the actions of the subjects do not contradict the norms of the law, do not infringe upon the interests of other persons, then the general goals and objectives of the legal proceedings are realized as efficiently as possible.
The question of measures aimed at reconciling the parties arises before the judge immediately after the adoption of the claim to his proceedings. Its solution requires not only clarification of the essence of the conflict that arose between the plaintiff and the defendant, but also an understanding of the motives of their behavior, individual characteristics of the participants, their psychological attitude. The judge should take these factors into account when choosing specific methods of legal influence on the consciousness of the conflicting parties in order to form their mutual desire to resolve the dispute peacefully.
The relationship of tasks with other elements of the process system
The tasks enshrined in Art. 148 Code of Civil Procedure of the Russian Federation, should be considered as key areas of activity of the court and other participants in the process, fixed by law. Therefore, they are directly related to the approximate list of preparatory and other possible actions ensuring their implementation. This is, in particular, the provisions of Articles 149, 150 of the Code.
Of course, far from always all the preparatory procedural actions provided for by law are performed in practice. However, the tasks enshrined in Art. 148 Code of Civil Procedure of the Russian Federation, must be fully implemented. The exception, perhaps, can only be a reconciliation of the parties. The fact is that the expected result - the settlement of the dispute and the conclusion of an agreement - can be achieved solely by the mutual will of the parties and, therefore, will completely depend on their discretion.
The specifics of preparatory actions
As an analysis of the provisions of Articles 149, 150 of the Code of Civil Procedure shows, not all actions provided for in them are aimed at implementing the tasks established by Art. 148 Code of Civil Procedure of the Russian Federation. In particular, the resolution of the issue related to the securing of the claim (clause 12 of part 1 of the norm 150) is necessary to ensure the enforcement of the judgment. Here it is worth pointing out one nuance. Strictly speaking, the activity to ensure the implementation of the decision (in contrast, for example, from the provision of evidence) does not directly relate to the provisions of Article 148. It is quite possible to resolve a dispute in a timely and correct manner even without taking interim measures.
Another thing is that a timely and proper trial is not necessary in itself. It is necessary to protect the freedoms, interests and rights of the parties, as well as to achieve other goals of justice. Therefore, they will not be implemented if the decision, although correct and timely, is not implemented due to the failure to take interim measures.
Clarification of duties and rights
This action is common to any civil case. The judge is obliged to explain to the participants in the proceedings their duties and rights. It is important that subjects are already aware of them at the preparatory stage and actively participate in procedural activities.
Clarification of duties and rights to the parties and other persons involved in the case, in art. 148 Code of Civil Procedure of the Russian Federation is not reflected as an independent task. However, without its implementation, many other procedural actions cannot be performed. I must say that the need for clarification to persons of their procedural status is mentioned in several paragraphs of Article 150 of the Code of Civil Procedure. However, in those of them where there is no reference to the corresponding duty of the judge, one cannot do without explanation. For example, when deciding on the appointment of an examination, the court must apply Art. 79.
Conclusion
The preliminary stage of the trial was officially fixed in the legislation relatively recently. The purpose of this stage is to consolidate the actions of the parties committed during the preparation of the case, to establish the circumstances and facts that are important for its proper consideration and resolution, to determine the completeness and sufficiency of evidence, to study the facts of missing time limits.
At the end of the meeting, the presiding judge, taking into account the opinion of the participants, assesses the degree of readiness of the materials for examination on the merits. Having decided all the questions submitted to the preparatory stage, the judge provides the subjects with the opportunity to speak about the appointment of the hearing.
If it is established that the case is ready for consideration on the merits, a determination is made. Usually, proceedings are started immediately after the adoption of this act at the same meeting. The corresponding mark is made in the protocol. If a different date is set, then there is a risk of obstacles for the subsequent movement of the case (non-appearance of subjects, loss of evidence, etc.).