Article 79 of the Code of Civil Procedure of the Russian Federation with comments. Article 79 of the Code of Civil Procedure of the Russian Federation: "Appointment of expertise"

In a number of cases, in the course of civil proceedings issues arise, for the solution of which special knowledge is required. In such situations, the appointment of an examination is necessary . РФ регламентирует организационные моменты этой процедуры. Article 79 of the Code of Civil Procedure regulates the organizational aspects of this procedure. Let's consider it further.

Art. 79 ГПК РФ

In 2015-2016, no changes were made to the article in question. If there are issues in the course of the case, for which special knowledge is required in the field of science, crafts, technology, art, the court makes a determination about conducting an additional investigation. 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 in the course of the investigation.

Rights of participants

Art. закрепляет их в части второй. 79 ГПК the Russian Federation fixes them in the second part. In accordance with the norm, participants are entitled to:

1. Ask the court to refer issues to be resolved, to a particular specialist or to a particular institution.
2. Declare an expert refusal.
3. Formulate questions for a specialist. The final list is formed by the judge.
4. To get acquainted with the court decision on the procedure.
5. ), комплексного, комиссионного исследования. To submit motions for the appointment of an additional or repeated ( article 79, 87 of the CCP RF ), an integrated commission commission study.

An Important Moment

In part 3 of Art. установлены последствия для любой стороны производства, уклоняющейся по тем или иным причинам от участия в исследовании, а без нее провести его невозможно, не представившим необходимые материалы и документы для изучения. 79 of the Code of Civil Procedure of the Russian Federation establishes the consequences for any party of the production, evading for one reason or another from participation in the study, and without it it is impossible to hold it without submitting the necessary materials and documents for study. In such and other similar situations, the court can recognize the circumstance for which the study was organized, refuted or established, was organized. According to part 3 of Art. , при этом суд учитывает, какая именно сторона уклонилась от участия в процедуре и какое значение факт имеет для нее. 79 ГПК the Russian Federation , thus the court considers, what party has evaded from participation in procedure and what value the fact has for it.

Explanations

Art. закрепляет понятие "вопросы, требующие специальных знаний". 79 ГПК the Russian Federation in new edition fixes concept "the questions demanding special knowledge". Previously, the term "knowledge" was used. This approach, according to lawyers, is more correct. It is determined by the following. "Special knowledge" in terms of philosophical analysis is regarded as an orderly process, in the course of which an exhaustive and complete knowledge of reality is obtained. The court, however, is not interested in the procedure for clarifying one or another of the circumstances, but rather the result of this activity. Analyzing Art. юристов, можно отметить, что правоведы обращают внимание на то, что законодатель считает, что в судопроизводстве существует принципиальная возможность провести достоверное познание, которое приведет к законному и обоснованному решению. 79 Civil Procedural Code of the Russian Federation with comments of lawyers, it can be noted that lawyers pay attention to the fact that the legislator believes that in the judicial process there is a fundamental opportunity to conduct reliable knowledge that will lead to a legitimate and justified decision.

Suspension of production

The court has the right to appoint a study on its own initiative. At the same time, there is rule 56 of the Code on the obligation of the parties to prove the circumstances that they use as grounds for the formulation of claims and objections. The definition of the implementation of the procedure can be adopted both at the stage of preparation for the proceedings, and directly during the consideration of the materials on the merits. In the first case, the court may suspend the proceedings. In such a situation, the passage of the term, within the meaning of Part 1 110 of the Code, is interrupted. The definition on the basis of which production is suspended is taken out in the preliminary session. However, it should be borne in mind that in the course of the proceedings of certain cases, a conclusion based on the results of the examination is considered one of the necessary means of proof.

Competent persons

As the art. , выполнение исследования может поручаться конкретным специалистам (нескольким или одному) либо уполномоченному учреждению. 79 ГПК the Russian Federation , research performance can be entrusted to concrete experts (to several or one) or to the authorized institution. Speaking of state organizations, their activities are regulated by Federal Law No. 73. This normative act sets out the key principles of the organization, the legal basis and the basic directions of forensic work. As this Law establishes, research is carried out by state institutions and specialists.

Terminology

Judicial expertise, in accordance with Federal Law No. 73, refers to procedural activities involving the conduct of research and the formation of opinions on issues for the resolution of which special knowledge in the field of technology, science, crafts or art is required and which are put by the judge before the competent person. The purpose of the procedure is to establish the facts to be proved. As a forensic expert institution is a specialized organization of the federal / regional executive structure created to ensure the exercise of the powers of judges / courts. They create a staff of employees who have the necessary knowledge to resolve the issues raised. The state forensic expert is a certified person who carries out the research within the framework of his duties.

Issues

They are formulated in the definition of the implementation of the study. As indicated in Art. , вопросы могут представлять стороны и другие лица, привлеченные к делу. 79 ГПК the Russian Federation , questions can represent the parties and other persons involved in business. Meanwhile, the final list is formed by the court. This approach is quite understandable and justified. Parties often raise issues that do not relate to the essence of the matter, or formulate them incorrectly, without connection with the disposition / hypothesis of a substantive law. The correct formulation of each question is extremely important for a specialist who will answer them. He can not change the wording in the course of his work. The court, in turn, examines the conclusion of the case and checks the conclusions on their compliance with the questions posed, their validity and completeness.

The principle of competition

In Art. он существенно расширен. 79 of the Code of Civil Procedure of the Russian Federation it is significantly expanded. Previously, the legislation did not contain an indication that participants could ask a judge to entrust a study to a particular specialist or institution. At present, this power is fixed in part two of Art. 79 CIC. In addition, participants can declare a challenge to a specialist, familiarize themselves with the judicial decision to conduct a study, as well as a conclusion drawn up according to its results. Also, the legislator grants the parties the right to apply for a commission, additional, comprehensive, re-examination, to perform other lawful actions within the framework of production.

Difficulty in practice

Examination can be carried out both by court decision and at the request of the parties. If interested persons are asked about the implementation of the study, the documents and materials necessary to identify certain circumstances are provided by them without problems. At the same time, when appointing a procedure by a court on his own initiative, the persons listed in art. 34 ГПК, in some cases evade participation. This can manifest itself in different ways. For example, evasion can consist in the failure to submit any items, documents, materials, including those directly relevant to the case. Given such situations, the legislator is fully justified in the third part of the rule in question has established a kind of sanction for the specified actions. In fact, evasive persons create obstacles to the administration of justice and the realization of its goals.

In legal publications, there is an assertion that the commented norm contains an official presumption. Meanwhile, this is not quite true. The point is that we are not talking about assumptions based on a cause-effect relationship, but about technical and legal methods specially used by the legislator to implement certain legal provisions or entire institutions (in particular, the institution of evidence).

Fiction of expertise

It states that if the party of production evades participation in the procedure, fails to submit to it documents necessary for research, materials, and in other situations, if it is impossible to conduct work without the involvement of that person, the court can acknowledge the fact, to prove it A process was organized, refuted or confirmed. In this case, in Art. 79 stipulates that the authority takes into account from which entity the opposition comes and what is the significance for him of the fact that is to be proved.

Analyzing the formulation of the norm, some lawyers point to the inconsistency of the text. So, if in the sense of the second part of the article under consideration other subjects brought to the case (usually third parties from whom the independent claims came within the scope of production) can request the judge to perform the research, then part three indicates that the fiction can be applied exclusively to Parties. In the opinion of lawyers, it is advisable to extend this rule to all persons involved in the proceedings, depending on who exactly the obstacles are created, documents or other materials, including the court itself, are not presented.

The first instances in some cases are afraid of using such a tool as a procedural fiction. This is due to the fact that they do not agree with the establishment of the elementary truth of the circumstances. This, in turn, reflects the validity of the law 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.