In a number of cases, during civil proceedings issues arise that require special knowledge to resolve . In such situations, the appointment of expertise is necessary . Article 79 of the Code of Civil Procedure of the Russian Federation regulates the organizational aspects of this procedure. Let's consider it further.
Art. 79 Code of Civil Procedure of the Russian Federation
In 2015-2016, no changes were made to this article. If questions arise during the course of the proceedings, the resolution of which requires special knowledge in the field of science, craft, technology, and art, the court shall issue a ruling on additional research. It may be assigned to one or more experts or a competent institution. Each party and other persons involved in the case may submit questions that, in their opinion, are subject to resolution during the study.
Member Rights
Art. 79 Code of Civil Procedure of the Russian Federation secures them in part two. In accordance with the norm, participants are entitled to:
- Ask the court to refer the issues to be resolved to a specific specialist or institution.
- Challenge the expert.
- Formulate questions for the specialist. The final list is formed by the judge.
- Get acquainted with the court ruling on the appointment of the procedure.
- Submit applications for the appointment of an additional or repeated ( Articles 79, 87 Code of Civil Procedure of the Russian Federation ), a comprehensive, commission study.
Important point
In h. 3 Article. 79 Code of Civil Procedure of the Russian Federation established the consequences for any side of production, evading for one reason or another from participation in the study, and without it it is impossible to conduct it without submitting the necessary materials and documents for study. In such and other similar situations, the court may recognize the circumstance, for the clarification of which the study was organized, refuted or established. According to part 3 of article 79 Code of Civil Procedure of the Russian Federation , while the court takes into account which party has declined to participate in the procedure and what significance the fact has for it.
Explanations
Art. 79 Code of Civil Procedure of the Russian Federation in the new edition consolidates the concept of "issues requiring special knowledge." Previously used the term "knowledge." This approach, according to lawyers, is more correct. This is due to the following. “Special cognition” in terms of philosophical analysis is considered as an ordered process, during which an exhaustive and complete knowledge of reality is obtained. The court, however, is not interested in the procedure for ascertaining certain circumstances, but in the outcome of this activity. Analyzing Art. 79 of the Code of Civil Procedure of the Russian Federation with the comments of lawyers, it can be noted that lawyers draw attention to the fact that the legislator believes that in legal proceedings there is a fundamental possibility to conduct reliable knowledge, which will lead to a legitimate and reasonable decision.
Production suspension
The court has the right to appoint a study on its own initiative. At the same time, there is rule 56 of the Code’s norm on the obligation of the parties to prove the circumstances that they use as grounds for formulating claims and objections. A decision on the implementation of the procedure can be made both at the stage of preparation for the proceedings, and directly during the examination of the merits. Moreover, in the first case, the court may suspend the proceedings. In such a situation, the flow of the term, within the meaning of Part 1 110 of the Code, is interrupted. The determination on the basis of which production is suspended is made in a preliminary meeting. However, it should be borne in mind that in the course of the trial of some cases, an opinion on the results of an examination is considered one of the necessary means of proof.
Competent persons
As art. 79 Code of Civil Procedure of the Russian Federation , the study may be entrusted to specific specialists (several or one) or an authorized institution. If we talk about state organizations, their activity is regulated by Federal Law No. 73. This regulatory act contains the key principles of the organization, the legal basis and the basic directions of forensic work. As established by this Law, research is carried out by state institutions and specialists.
Terminology
Judicial examination, in accordance with Federal Law No. 73, is called procedural activity, which includes conducting research and forming an opinion on issues that require special knowledge in the field of technology, science, craft or art, and which are put before a competent person by a judge. The purpose of the procedure is to establish the facts to be proved. As a forensic institution, a specialized organization of the federal / regional executive structure, created to ensure the exercise of the powers of judges / courts, acts. They create a staff of employees with the necessary knowledge to resolve the issues raised. A state forensic expert is a certified person conducting research within the scope of his duties.
Questions
They are formulated in the definition of the performance of the study. As indicated in Art. 79 Code of Civil Procedure of the Russian Federation , questions may be submitted by the parties and other persons involved in the case. Meanwhile, their final list is formed by the court. This approach is quite understandable and justified. Parties often raise questions that are not relevant or formulate them incorrectly, without regard to the disposition / hypothesis of a particular substantive rule. The correct formulation of each question is extremely important for the specialist who will answer them. He cannot change the wording during his work. The court, in turn, during the trial of the case, studies the conclusion and checks the conclusions for their compliance with the questions raised, their validity and completeness.
Adversarial principle
In Art. 79 Code of Civil Procedure of the Russian Federation, it is significantly expanded. Previously, the law did not indicate that participants may ask a judge to entrust a study to a specific specialist or institution. Currently, this power is secured in part two of Art. 79 Code of Civil Procedure. In addition, participants can challenge the specialist, get acquainted with the court ruling on the study, as well as the conclusion drawn up based on its results. The legislator also gives the parties the right to petition for a commission, additional, comprehensive, re-examination, to perform other legitimate actions in the framework of the proceedings.
Difficulty in practice
Examination can be carried out both by court decision and at the request of the parties. If the interested parties asked for the study, then the documents and materials necessary to identify certain circumstances are provided by them without problems. At the same time, when the procedure is appointed by the court on its own initiative, the persons listed in art. 34 GIC, in some cases, shy away from participation. This can manifest itself in many ways. For example, evasion may consist in the failure to submit any objects, documents, materials, including those directly related to the case. Given these situations, the legislator justifiably in part of the third rule in question established a kind of sanction for these actions. In fact, evaders create obstacles to the administration of justice and the realization of its goals.
In legal editions there is a statement that the commented norm contains an official presumption. Meanwhile, this is not entirely true. The fact is that this is not about assumptions based on a causal relationship, but about technical and legal techniques specially used by the legislator to implement certain legal provisions or entire institutions (in particular, the institution of evidence).
Fiction Examination
She states that if a party to the proceedings evades participation in the procedure, fails to provide it with the documents, materials necessary for the study, as well as in other situations, if it is impossible to carry out work within the circumstances of the case without involving this person, the court may admit a fact for the proof of which a refuted or confirmed process was organized. Moreover, in Art. 79 it is stipulated that the authority takes into account which particular subject the opposition emanates from and what is the significance of the fact to be proved for it.
When analyzing the wording of the norm, some lawyers point out the inconsistency of the text. So, if, within the meaning of the second part of the article under review, other subjects involved in the case can ask the judge to complete the investigation (usually these are third parties from whom they came up with independent claims in the proceedings), then the third part indicates that the fiction can only be applied to sides of the matter. According to legal scholars, it is advisable to extend this rule to all persons involved in the proceedings, depending on who the obstacles are, documents or other materials are not submitted, including to the court itself.
First instances in some cases are afraid to use such a tool as procedural fiction. This is due to the fact that they do not agree with the establishment of the elementary truth of circumstances. This, in turn, affects the validity of the enforcement act issued by the court. Meanwhile, experts consider such fears to be in vain, since procedural fictions are fixed within the framework of the constitutional field.