Pskov regional court. Pskov Regional Court Part 2 Article 61 Civil Procedure Code of the Russian Federation comments

Civil Procedure Code Russian Federation:

Article 61 of the Code of Civil Procedure of the Russian Federation. Grounds for exemption from proof

1. Circumstances, recognized by the court are generally known and do not require proof.

2. Circumstances established by the person who entered into legal force by a court ruling on a previously considered case are binding on the court. The specified circumstances are not proven again and are not subject to challenge when considering another case in which the same persons participate, as well as in cases provided for by this Code.

3. When considering a civil case, the circumstances established by a decision of the arbitration court that has entered into legal force must not be proven and cannot be disputed by persons if they participated in the case that was resolved by the arbitration court.

4. A court verdict in a criminal case that has entered into legal force, other court decisions in this case and court decisions in a criminal case administrative offense are mandatory for the court considering the case on the civil consequences of the actions of the person in respect of whom they were issued, on the issues of whether these actions took place and whether they were committed by this person.

5. Circumstances confirmed by a notary when committing notarial act, do not require proof if the authenticity of a notarized document is not refuted in the manner established by Article 186 of this Code, or is not established significant violation procedure for performing a notarial act.

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Comments on Article 61 of the Code of Civil Procedure of the Russian Federation, judicial practice of application

In pp. 8, 9 Resolutions of the Plenum Supreme Court RF dated December 19, 2003 N 23 “On the Judgment” contains the following explanations:

Mandatoryness of a court verdict in a civil case in terms of proof of the guilty actions of a specific person

By virtue of Part 4 of Article 61 of the Code of Civil Procedure of the Russian Federation, a court sentence in a criminal case that has entered into legal force is obligatory for the court considering the case on the civil consequences of the actions of the person in respect of whom the sentence was passed, only on questions of whether these actions took place (inaction ) and whether they were committed by this person.

Based on this, the court, when making a decision on a claim arising from a criminal case, does not have the right to enter into a discussion of the defendant’s guilt, but can only resolve the issue of the amount of compensation.

In a court decision to satisfy a claim, in addition to referring to the verdict in a criminal case, the evidence available in a civil case should also be cited to justify the amount of the awarded amount (for example, taking into account the property status of the defendant or the guilt of the victim).

Mandatory nature of a decision in a case of an administrative offense in a civil case in terms of proof of the actions of a specific person

Based on Part 4 of Article 1 of the Code of Civil Procedure of the Russian Federation, by analogy with Part 4 of Article 61 of the Code of Civil Procedure of the Russian Federation, it is also necessary to determine the meaning of the ruling and (or) decision of the judge that has entered into legal force in a case of an administrative offense when considering and resolving a case of civil legal consequences by the court actions of the person in respect of whom this resolution (decision) was made.

Bindingness of a decision of a court or arbitration court in a previously considered civil case between the same persons in terms of the circumstances established by the court

According to Part 2 of Article 61 of the Code of Civil Procedure of the Russian Federation, the circumstances established by a court decision that has entered into legal force in a previously considered civil case are binding on the court. The specified circumstances cannot be proven and are not subject to challenge when considering another case in which the same persons participate.

The circumstances established by the decision of the arbitration court that has entered into legal force (Part 3 of Article 61 of the Code of Civil Procedure of the Russian Federation) have the same significance for the court considering a civil case.

The court ruling specified in Part 2 of Article 61 of the Code of Civil Procedure of the Russian Federation means any court order, which, in accordance with Part 1 of Article 13 of the Code of Civil Procedure of the Russian Federation, is accepted by the court (court order, court decision, court ruling), and under the decision of the arbitration court - a judicial act provided for in Article 15 of the Arbitration Code procedural code Russian Federation.

Based on the meaning of Part 4 of Article 13, Parts 2 and 3 of Article 61, Part 2 of Article 209 of the Code of Civil Procedure of the Russian Federation, persons who did not participate in the case in which the court general jurisdiction or an arbitration court has issued a corresponding court ruling, has the right, when considering another civil case with their participation, to challenge the circumstances established by these judicial acts. In this case, the court makes a decision based on the research court hearing evidence.

New edition of Art. 61 Code of Civil Procedure of the Russian Federation

1. Circumstances recognized by the court as generally known do not require proof.

2. The circumstances established by a court decision that has entered into legal force in a previously considered case are binding on the court. The specified circumstances are not proven again and are not subject to challenge when considering another case in which the same persons participate.

4. A court verdict in a criminal case that has entered into legal force is obligatory for the court considering the case on the civil consequences of the actions of the person in respect of whom the court sentence was passed, on the issues of whether these actions took place and whether they were committed by this person.

5. Circumstances confirmed by a notary when performing a notarial act do not require proof unless the authenticity of a notarized document is refuted in the manner established by Article 186 of this Code, or a significant violation of the procedure for performing a notarial act is established.

Commentary on Article 61 of the Code of Civil Procedure of the Russian Federation

1. According to the general rule formulated in, each party must prove the circumstances to which it refers as the basis for its claims and objections, unless otherwise provided federal law. Exceptions from of this rule enshrined in Art. 61 Code of Civil Procedure.

This article provides for two groups of circumstances that persons participating in the case may not prove, but the court can use them as the basis for its decision: well-known (part 1) and prejudicial (parts 2 - 4) facts. It is necessary to point out one more group of circumstances that are not subject to proof - these are recognized facts (Part 2 of Article 67 of the Code of Civil Procedure of the Russian Federation). For more details, see the commentary in Part 2 of Art. 67.

The first group of facts specified in Part 1 of Art. 61 of the Code of Civil Procedure of the Russian Federation, persons participating in the case may not prove only in cases where they are recognized as generally known by the court considering the case. Therefore, in cases where the court does not authorize the recognition of circumstances as generally known, they are subject to proof according to general rules, provided for in Art. 56 Code of Civil Procedure.

Well-known facts are facts known to a wide range of people, as well as to the court, which has the right to recognize them as such. Since well-known is a relative category, the degree of awareness of such facts can be different (world-famous, throughout the entire territory of the Russian Federation, in the territory of a separate subject of the Russian Federation, region, settlement and so on.). At the same time, the court must indicate the degree of general knowledge of the circumstances in the reasoning part of its decision in order to confirm the grounds for exempting the persons participating in the case from proving them.

An example of well-known circumstances is the crisis of 2008, the accident at the Sayano-Shushenskaya hydroelectric power station, various types of natural disasters, epidemics, etc.

2. According to Part 2 of Art. 61 of the Code of Civil Procedure of the Russian Federation, the circumstances established by a court decision that has entered into legal force in a previously considered civil case are binding on the court. The specified circumstances cannot be proven and are not subject to challenge when considering another case in which the same persons participate. These circumstances are also called prejudicial (the term “prejudice” comes from the Latin praejudicio - prejudicial decision), since they were established by a court decision that entered into legal force in a previously considered case.

As the Plenum of the Armed Forces of the Russian Federation explained in paragraph 9 of its Resolution No. 23 dated December 19, 2003, under the court ruling specified in Part 2 of Art. 61 of the Code of Civil Procedure of the Russian Federation means any court decision, which, in accordance with Part 1 of Art. 13 of the Code of Civil Procedure of the Russian Federation is accepted by the court. Part 1 art. 13 of the Code of Civil Procedure of the Russian Federation provides that courts adopt judicial decisions in the form court orders, court decisions, court rulings, decisions of the presidium of the supervisory court.

Persons participating in the case will not need to prove in a new civil case with the same subject composition the circumstances that will be established by such court decisions, provided that they enter into legal force according to the rules of Art. 209, 391 Code of Civil Procedure. In this case, it will not matter in what status these persons participated in the first case in which the facts were established by a court decision that entered into legal force, the main thing is that they are persons participating in the case.

Persons who did not participate in the case in which a court of general jurisdiction made a corresponding judicial decision have the right, when considering another civil case with their participation, to challenge the circumstances established by these judicial acts. And the persons participating in the case will prove all the circumstances in accordance with the general rules of evidence enshrined in Art. 56 Code of Civil Procedure. It is noteworthy that the wording of this norm actually reproduces the content of Part 2 of Art. 209 Code of Civil Procedure.

3. Exemption from proving circumstances established by the arbitration court differs from exemption from proving facts established by a court of general jurisdiction in that only those circumstances established by the decision of the arbitration court will have prejudicial significance. This position is enshrined in paragraph 9 of the Resolution of the Plenum of the Armed Forces of the Russian Federation dated December 19, 2003 N 23: the decision of the arbitration court should be understood as a judicial act provided for in Art. 15 APK. According to Part 2 of Art. 15 of the APC, a decision is “a judicial act adopted by the arbitration court of first instance when considering the case on the merits.”

If we turn to the terminology of the APC (Part 1 of Article 15), all judicial acts are adopted by arbitration courts in the form of decisions, decrees and determinations. Only solutions arbitration courts will contain prejudicial facts when considering cases in courts of general jurisdiction with the same persons participating in the case. The facts established by the rulings and decisions of the arbitration court will not have prejudicial significance. This position of the legislator seems not entirely correct, since with this approach, in cases of cancellation or change of the decision of the arbitration court in appeal, cassation or supervisory procedure facts established by data rulings courts arbitration court should not be recognized as prejudicial; the person participating in the case will have to prove them. The same can be said with regard to the rulings of the arbitration court.

It is possible for the composition of persons participating in a case to coincide in a court of general jurisdiction and arbitration courts, since the possibility of participation of citizens in arbitration courts is provided for by the wording of the current APC (part 4 of article 27, part 2 of article 33).

The interpretation of this norm allows us to conclude that if the composition of persons participating in a case in a court of general jurisdiction differs from the composition of participants in an arbitration court, then the circumstances established in the decision of the arbitration court are subject to proof on a general basis (Article 56 of the Code of Civil Procedure of the Russian Federation).

4. When considering a civil case on the civil legal consequences of the actions of a person in respect of whom a sentence has been passed that has entered into legal force, only two circumstances will have prejudicial significance for the court: whether these actions (inaction) took place and whether they were committed by this person. No other circumstances and facts reflected in the court's verdict will be binding on the court considering a civil case, and all of them are subject to proof on a general basis. Based on this, the court, when making a decision on a claim arising from a criminal case, does not have the right to enter into a discussion of the defendant’s guilt, but can resolve the issue of the amount of compensation.

Deciding on reimbursement material damage caused by a crime, the court is not bound by the amount indicated in the court verdict in a criminal case. Of course, the circumstances of a criminal case reflected in a court verdict can be used when considering a civil case, but they will not have prejudicial significance, and the amount of damage will be determined by the court considering a civil case according to the general rules of civil procedural legislation.

It is noteworthy that in Art. 61 of the Code of Civil Procedure of the Russian Federation does not indicate the recognition by the court of prejudice of the circumstances established by the resolution and (or) decision of the judge in the case of an administrative offense that has entered into legal force. We need to talk only about court acts, since decisions officials, authorized to consider cases of administrative offenses, can be appealed to the court (Part 2 of Article 46 of the Constitution, Article 30.1 of the Code of Administrative Offenses of the Russian Federation).

It seems that in in this case courts must recognize as prejudicial the circumstances established by a decree and (or) decision of a judge in a case of an administrative offense that has entered into legal force, in otherwise The norms of the special part of the Code of Civil Procedure become ineffective and meaningless. In particular, Art. 215 of the Code of Civil Procedure of the Russian Federation provides for the obligation of the court to suspend the proceedings in the case of “the impossibility of considering this case until the resolution of another case being considered in civil, administrative or criminal proceedings.” Such suspension of proceedings is necessary to resolve another case related to the case under consideration, in civil, administrative or criminal proceedings, and for the use in the suspended case after its resumption of court decisions, sentences, decisions and decisions that have entered into legal force to recognize the prejudice of certain facts. A reasonable question arises: how will the civil case being considered (subject to suspension) be affected by another case being considered in accordance with the procedure administrative proceedings, what consequences will arise after the resumption of proceedings in the case and what will happen if the proceedings are not suspended? In this case, there will be no interdependence or connection between these matters. But then another question arises: why in the said provision of Art. 215 of the Code of Civil Procedure of the Russian Federation does not indicate the need to suspend proceedings until another case is resolved in accordance with the procedure in the arbitration court?

This gap is proposed to be resolved by applying the analogy of the law, while this position is also shared by the RF Armed Forces, which indicated in paragraph 9 of the Resolution of the Plenum of the RF Armed Forces of December 19, 2003 N 23, that on the basis, by analogy with Part 4 of Art. 61 of the Code of Civil Procedure of the Russian Federation, it is also necessary to determine the meaning of the decision and (or) decision of the judge that has entered into legal force in a case of an administrative offense when the court considers and resolves a case on the civil consequences of the actions of the person in respect of whom this resolution (decision) was made.

Another comment on Art. 61 Civil Procedure Code of the Russian Federation

When considering a civil case, facts that are not subject to proof should be taken into account. The Code of Civil Procedure of the Russian Federation provides for three categories of facts that can be used as the basis for a decision in a case without proof in court:

1) generally known facts;

2) prejudicially established facts;

3) facts recognized by the party (see Article 68 of the Code of Civil Procedure and the commentary thereto).

The commented article sets out two groups of facts that are not subject to proof.

Well-known facts are those that are known to a wide range of people, including judges. The right to recognize a fact as generally known is granted to the court. This is possible under the simultaneous presence of two conditions:

1) objective - the fact is known to a wide range of people;

2) subjective - knowledge of the fact to all members of the court.

In such cases we are talking about axioms, i.e. judgments that have been repeatedly tested in practice and do not require special evidence due to factual clarity or methodological simplicity. The reason for accepting such axioms lies in the human cognitive ability to directly discern obvious truths.

In case of doubt about the general knowledge of a fact or part of it, specialists can be involved in the process (to give consultations, explanations on facts known within the profession, widespread in a certain area, etc.).

Prejudicially established facts - established by a previously passed and entered into legal force sentence or court decision in a specific case.

Prejudice is a normative instruction that provides the body considering a legal case with the opportunity to free itself from the need to prove circumstances that have already been previously established and enshrined in the relevant judicial act(decision, sentence).

The circumstances established by a decision that has entered into legal force in a previously considered case are binding on the court. The specified circumstances are not proven again and are not subject to challenge when considering another case in which the same persons participate.

A verdict of a court that has entered into legal force, considering a case on the civil consequences of the actions of a person in respect of whom a court verdict was passed on such issues as: whether these actions took place and whether they were committed by this person. Other circumstances established by a verdict of a court of general jurisdiction are not prejudicial to the consideration of the case by the court.

However, in the case when the evidence available in the case contradicts the prejudicial facts and the available possibilities for additional examination of the evidence have been exhausted (from the standpoint of their relevance, admissibility and reliability), the court, due to the principle of non-predetermination of judicial evidence, its free assessment (see. Art. 67 of the Civil Procedure Code and commentary thereto), as well as the presumption of the truth of the court decision (sentence), has the right to resolve the case on the basis of the evidence available in the case.

Admission of a fact is a special case of exemption from proof. Here, the role of discretion, the internal conviction of the judge (judges) in the truthfulness of the person, the absence of coercion or delusion, is great. Therefore, if the court has reason to believe that the confession was made in order to conceal the actual circumstances of the case or under the influence of deception, violence, threats, or honest misconception, the court does not accept the confession, about which the court issues a ruling. In this case, these circumstances are subject to proof on a general basis.

As you can see, the grounds for exemption from proof specified in the commented article and part 2 of Art. 68 of the Code of Civil Procedure are relative; they are not proven unless they raise doubts in the court.

Definition Constitutional Court Russia dated July 4, 2017 No. 1442-O refused to accept for consideration the complaint of citizen V.Yu. Aleksandrov. for violation of his constitutional rights by part four of Article 61 of the Code of Civil Procedure of the Russian Federation, since the complaint does not meet the requirements of the Federal constitutional law « About the Constitutional Court of the Russian Federation”, according to which the complaint to the Constitutional Court of the Russian Federation is recognized as admissible.

The Determination states that the right to full and effective judicial protection, within the meaning of Article 46 of the Constitution of the Russian Federation and Article 6 Convention for the Protection of Human Rights and Fundamental Freedoms, taking into account the principle of legal certainty as an integral element of the right to a court, includes the enforceability of court decisions that have entered into legal force. Accordingly, the right of the victim to file a claim for compensation for damage caused by the crime within the framework of the institution of civil action in a criminal case, as intended to ensure the most effective judicial protection rights of a crime victim, including the right to access justice and compensation for damage caused, must be met by the duty of the court to fully, comprehensively and objectively consider these claims and make a legal, reasonable and reasoned decision, secured by guarantees of its recognition and execution.

From the principles of universal bindingness and enforceability of court decisions that have entered into legal force, as the Constitutional Court of the Russian Federation has repeatedly indicated, as acts of the judiciary, stipulated by its prerogatives, as well as norms defining the place and role of the court in legal system of the Russian Federation, the legal force and significance of its decisions (Articles 10 and 118 of the Constitution of the Russian Federation), follows the recognition of the prejudicial value of a court decision, suggesting that the facts established by the court when considering one case, pending their refutation, are accepted by another court in another case in this or other type of legal proceedings, if they are relevant to the resolution of the case. Thus, prejudiciality serves as a means of maintaining the consistency of judicial acts and ensures the operation of the principle of legal certainty (decrees No. 30-P dated December 21, 2011 and No. 14-P dated June 8, 2015; resolutions No. 2528-0 dated November 6, 2014, dated February 17 .2015 No. 271-0, etc.).

Consequently, the facts established by a court verdict that has entered into legal force, which are significant for resolving the issue of compensation for damage caused by the crime, prior to their refutation, must be accepted by the court considering this issue in accordance with the procedure civil proceedings. If, in a verdict that has entered into legal force, a decision is made on the merits of a civil claim, including in the case where such a claim is resolved in relation to the right to compensation for harm, and the issue of the amount of compensation is referred for consideration in civil proceedings, it is mandatory for all organs without exception state power, organs local government, public associations, officials, other individuals and legal entities, including for courts considering civil cases.

Part four of Article 61 of the Code of Civil Procedure of the Russian Federation provides for the prejudicial significance in a civil case of a sentence in a criminal case, including in a criminal case in which civil action was not presented or was not resolved (part three of Article 31 of the Code of Civil Procedure of the Russian Federation), and also in which it was left without consideration in accordance with part three of Article 250 or part two of Article 306 of the Code of Criminal Procedure of the Russian Federation (a civil claim may be left without consideration if the civil claim fails to appear the plaintiff or his representative, as well as when issuing a verdict of acquittal, issuing a resolution or ruling to terminate a criminal case on certain grounds). In these cases, there are no obstacles for the civil plaintiff to present his claims in civil proceedings, which are considered taking into account the general prejudicial significance of the court verdict that has entered into legal force.

If the verdict recognizes the right of a civil plaintiff to satisfy a civil claim, the court is obliged to establish the relevant factual and legal basis. According to the Code of Criminal Procedure of the Russian Federation individuals, to whom the crime caused physical, property, moral injury, as well as legal entities in the event of a crime causing damage to their property and business reputation are recognized as victims (Article 42), and when they present claims for compensation for damage in a criminal case - as civil plaintiffs (Article 44), while a civil plaintiff is an individual or legal entity that has filed a claim for compensation for property damage, if there are grounds to believe that this the harm was caused to him directly by the crime (part one of Article 44), but persons who, in accordance with the Civil Code of the Russian Federation, are responsible for the harm caused by the crime (part one of Article 54) are brought in as civil defendants.

Consequently, the satisfaction of a civil claim on the merits in the verdict - in terms of recognizing the right of the civil plaintiff to compensation by the civil defendant for harm caused directly by the crime - means the court has established general conditions occurrence of civil tort (non-contractual) liability:

presence of harm,
illegality of the actions of its perpetrator,
Availability causation between harm and illegal actions,
the guilt of the perpetrator,
its special conditions related to the characteristics of the subject of responsibility and the nature of his actions.

In this case, the court verdict cannot be considered as ordinary written evidence, which has the property of prejudice, since this verdict resolves essentially a civil claim on the right with the definition in the operative part of the judicial act of the rights and obligations of the participants in the substantive legal case civil relations, which cannot be ignored in a civil case. If the court had refused to satisfy the claim in its verdict, thereby negatively defining the rights and obligations of the participants in the disputed material legal relationship, then the requirements of paragraph 2 of part one of Article 134 of the Code of Civil Procedure of the Russian Federation would apply, according to which the judge refuses to accept statement of claim if there is a court decision that has entered into legal force on a dispute between the same parties, on the same subject and on the same grounds.

In addition, the properties of the mandatory and prejudicial nature of a court decision that has entered into force differ. If prejudiciality stipulates only the recognition in another case of previously established facts (i.e., it acts as a formal means of proof or a basis for exemption from), then general bindingness is a broader concept, including, along with prejudiciality, also the enforceability of the governmental instructions contained in the operative part of the court decision on specific rights and obligations of subjects. Ignoring in civil process conclusions recognizing the right of the victim to compensation for harm contained in a sentence that has entered into legal force can lead to the actual overcoming of the finality and irrefutability of a judicial act that has entered into legal force without observing the special procedural conditions for its review established by law, i.e. to arbitrariness in the exercise of judicial power, which would contradict its constitutional purpose, as defined legal positions The Constitutional Court of the Russian Federation, formulated in its decisions dated May 11, 2005 No. 5-P and dated February 5, 2007 No. 2-P.

The refusal of a court considering in civil proceedings the issue of the amount of compensation for damage caused by a crime to be guided by a verdict recognizing the civil plaintiff's right to satisfy a civil claim would be a direct violation of the requirements of Part 1 of Article 6 of the Federal Law. of the new constitutional law of December 31, 1996 No. 1-FKZ “On judicial system Russian Federation", Part 8 of Article 5 of the Federal Constitutional Law of 02/07/2011 No. 1-FKZ " About courts of general jurisdiction in the Russian Federation", part one of article 392 of the Code of Criminal Procedure of the Russian Federation and part two of article 13 of the Code of Civil Procedure of the Russian Federation, in accordance with which the acts that entered into legal force federal courts, magistrates and courts of the constituent entities of the Russian Federation are binding on all state authorities, local governments, public associations, officials, other individuals and legal entities without exception, and are subject to strict execution throughout the entire territory of the Russian Federation.

This was brought to the attention of the courts by the Plenum of the Supreme Court of the Russian Federation, which in paragraph 8 of the resolution of December 19, 2003 No. 23 “ About the court decision» indicated: the court, when making a decision on a claim arising from a criminal case, does not have the right to enter into a discussion of the defendant’s guilt, but can only resolve the issue of the amount of compensation; in a court decision to satisfy a claim, in addition to referring to the verdict in a criminal case, the evidence available in a civil case should also be cited to justify the amount of the awarded amount (for example, taking into account the property status of the defendant or the guilt of the victim).

Thus, the fourth part of Article 61 of the Code of Civil Procedure of the Russian Federation, contested by the applicant, cannot in itself be regarded as violating constitutional rights an applicant whose civil claim to recognize his right to compensation for damage caused by a crime was satisfied in the criminal case when the verdict was rendered, in the aspect indicated in his complaint.

When considering a civil case, the circumstances established by an arbitration decision that has entered into legal force must not be proven and cannot be disputed by persons if they participated in the case that was resolved by the arbitration court. 4. A court verdict in a criminal case that has entered into legal force is obligatory for the court considering the case on the civil consequences of the actions of the person in respect of whom the court sentence was passed, on the issues of whether these actions took place and whether they were committed by this person. 5.

Comments to ST 61 Code of Civil Procedure of the Russian Federation

An indication in the decision of the general knowledge of a fact known in a certain area is mandatory, since this fact may not be known to a superior.

2. Prejudicial facts are those facts that are established by a court decision that has entered into force and has not been revoked. Prejudice can be complete or limited.

Prejudicial meaning in in full have facts established by a decision of a court of general jurisdiction in a civil case, as well as decisions of arbitration courts.

Article 61

On the application of Art.

2 and 3 tbsp.

61 of the Code of Civil Procedure of the Russian Federation, difficulties arise even in a situation where there is an explanation from the Plenum of the Supreme Court of the Russian Federation in paragraph 9 of the Resolution of December 19, 2003.

N 23 “On the court decision”. ——————————— Russian newspaper. 2003. December 26; Bulletin of the Supreme Russian Federation.

2004. N 2. Let us give a specific example from judicial practice. The decision of the district court recognized the claims of applicant M. as justified.

Article 61 of the Code of Civil Procedure of the Russian Federation

When considering a civil case, the circumstances established by a decision of the arbitration court that has entered into legal force must not be proven and cannot be disputed by persons if they participated in the case that was resolved by the arbitration court. 4. A court verdict in a criminal case that has entered into legal force is obligatory for those considering the case on the civil consequences of the actions of the person against whom the sentence was passed, on the issues of whether these actions took place and whether they were committed by this person.

Practice examples - court decisions under Article 61 of the Code of Civil Procedure of the Russian Federation: Decision in case 2-2243/2015 M-2207/2015 (08/23/2018, Ust-Labinsky district court(Krasnodar Territory)) Decision in case 2-6035/2015 M-6050/2015 (08/23/2018, Kalininsky District Court

Article 61

Article 61 of the Code of Civil Procedure of the Russian Federation

The specified circumstances are not proven again and are not subject to challenge when considering another case in which the same persons participate. 3. When considering a civil case, the circumstances established by a decision of the arbitration court that has entered into legal force must not be proven and cannot be disputed by persons if they participated in the case that was resolved by the arbitration court.

Article 61 of the Civil Procedure Code of the Russian Federation with comments

Prejudicial connection of judicial acts - legal phenomenon, designed to simplify the process of proof in cases where facts and legal relations have already been the subject judicial review, and aimed at preventing the revision of judicial acts that have entered into legal force. Current state legislation and judicial practice, unfortunately, do not allow us to talk about the existence of an established, coherent system of norms regulating the scope of grounds for exemption from proof of prejudicially established circumstances. Article 118 of the Constitution of the Russian Federation provides that judicial branch in the Russian Federation is carried out through constitutional, civil, administrative and criminal proceedings. The term " arbitration proceedings" is not used in the Constitution of the Russian Federation. Nevertheless, arbitration courts represent an established system that is based on general principles and provisions of the judicial system and legal proceedings, which are equally valid for other courts: Constitutional, general jurisdiction and courts of constituent entities of the Russian Federation. Thus, the existence of two independent systems of courts administering justice and considering cases in civil proceedings has led to the dualism of civil proceedings, within the framework of which civil and arbitration processes function as independent industries rights. Speaking about the prejudicial connection of judicial acts within the framework of civil proceedings, we, therefore, mean the prejudicial connections that develop between: 1) judicial acts of courts of general jurisdiction in civil cases; 2) judicial acts of arbitration courts in civil cases; 3) judicial acts of courts of general jurisdiction and arbitration courts in civil cases. Part 2 of Art. is devoted to the prejudicial connection of judicial acts of courts of general jurisdiction in civil cases. 61 of the Code of Civil Procedure of the Russian Federation, which states that the circumstances established by a judicial act in a previously considered case have entered into legal force for the court, and the prohibition on re-proving or challenging these circumstances when considering another case in which the same persons are involved. As you can see, the legislator in Part 2 of Art. 61 of the Code of Civil Procedure of the Russian Federation speaks both about the prejudiciality of a judicial act for the parties, and about the prejudiciality of a judicial act for the court. Nevertheless, the wording enshrined in this norm raises a number of questions. So, in the second sentence of Part 2 of Art. 61 of the Code of Civil Procedure of the Russian Federation states that the circumstances established by a judicial act that has entered into legal force in a previously considered case are not proven again and are not subject to challenge when considering another case in which the same persons are involved. Previously, we have already considered situations when, in a new case, in addition to the persons who participated in the first process, new persons appear. We came to the conclusion that even in this case, the prejudice of judicial acts can extend its effect to persons who participated in the first process, while new persons can both challenge and recognize these circumstances. However arbitrage practice gives reason to doubt the proposed way to resolve this situation. In particular, in para. 4 clause 9 of the Resolution of the Plenum of the Armed Forces of the Russian Federation of December 19, 2003 N 23 “On the court decision” * (114) states that “based on the meaning of part 4 of article 13, parts 2 and 3 of article 61, part 2 of article 209 Civil Procedure Code of the Russian Federation, persons who did not participate in the case in which the court of general jurisdiction ... made a corresponding court decision, have the right, when considering another civil case with their participation, to challenge the circumstances established by these judicial acts. In this case, the court makes a decision on the basis of those examined in the case. evidence at trial." Thus, the question arises: if new persons can challenge the facts and legal relations enshrined in a judicial act in a previously considered case, then can persons former participants previously considered case, present your arguments (including those supported by relevant evidence) regarding the arguments