Correspondence production in the civil process. The concept and importance of correspondence production

Correspondence production in the civil process exists long ago. In legal publications, it is called a simplified procedure. Throughout this time, this institution has established itself as an effective legal tool.

The concept and importance of correspondence production

Recognition by the respondent of the fact that the claims brought against him by the plaintiff will be satisfied with his evasion without valid reasons, passivity, should encourage him to be active. The existing types of civil process presuppose the use of the powers and procedural rights granted by law from the very first hearing. The activity of the parties helps to speed up the consideration of cases. The absentee proceedings and the absentee decision can be interpreted as one of the options for considering the dispute on the merits.

It must be said that the consideration of the case in this way involves some one-sidedness in the judge's perception of the circumstances of the dispute. Accordingly, this may affect the opinion of the authorized person, the content of the act passed. In this connection, according to the principle of equality, the defendant should be able to demand the cancellation of the order, subject to certain conditions. Correspondence production in the civil process is a form that is adapted and necessary for the realization of the right to defend in the court of the subject who applied for a resolution of the disputable case, when there is no possibility to observe the principle of adversariality of the parties.

Essence

As the basis of the absentee proceedings, the actual absence of one of the participants in the dispute in the consideration of the case. Absence of the party significantly affects the course of the procedure. It entails the exclusion from the proceedings of those acts by which the right to defense in court is exercised. The peculiarities of this form are that it does not presuppose a verbal debate between the participants. Within the procedure, competitiveness is present, but it does not manifest itself to the full. Oral explanation is given only by one side. Only it provides evidence in the civil process. In the absence of one of the participants, the judicial procedure is implemented, although not in full measure. Substantive legal and procedural issues are resolved not with a comprehensive, but with one-sided discussion.

This, however, does not mean that when using this form of consideration of the case, the objectives of the proceedings will not be achieved. All types of civil process involve research of the submitted materials. In this regard, even in the absence of one of the parties at the meeting, the court will issue a ruling in accordance with the information learned. A person evading participation in the proceedings should be aware of the importance of absentee proceedings. This form is not intended to infringe on the rights of an unreconciled defendant. It is aimed at resolving the dispute in accordance with the available evidence at the optimal time.

An Important Moment

The concept of absentia production presupposes an unquestionable participation in the proceedings of the plaintiff. A clear positive initiative must come from it. In the case of the plaintiff's failure to attend the court session, there are always doubts about his desire to support the claims in their original form. In a number of cases, it can even be concluded that the party has renounced its claims. In this connection, the absentee proceedings in the civil proceedings due to non-attendance at the plaintiff's meeting are contrary to the dispositive principles of the proceedings. In the absence of this participant, any other party to the dispute should give impetus to the commencement of the proceedings. If no defendant or plaintiff appeared at the hearing, then only the court remains. The legislation of the Russian Federation does not provide for the initiative of the court in the proceedings, because otherwise it would contradict the role of this body in the procedure.

Failure to Appear

It can be viewed from different angles. For example, the failure of the defendant to appear indicates a denial of the claim. If this is true, then evasion of participation in the proceedings is a method of protection, consciously used by the person. However, it seems that such an opinion can not be considered correct. In case of non-attendance, the respondent may, probably, count on the fact that the judge himself, using the legislation of the Russian Federation, will withdraw from the submitted materials all admissible objections to the requirements.

If the case is examined in the absence of a party who is not aware of the fact that a claim has been brought against her, there is a violation of her rights. This means that this form of court "care" about the defendant is fully justified. Proceedings should not be conducted in the absence of a participant who is not notified of the meeting. If you consider non-appearance as the recognition of the claim on the part of the defendant, then such an opinion, in fact, acts as a party's accusation without examining the case on the merits. This position is contradicted by the very concept of absentee production.

Summarizing the above provisions, it can be said that none of them can be the determining factor in the nature of the form of litigation in question. In addition, it must be taken into account that, given the existing variety of probable reasons why the defendant is not attending the meeting, the true circumstances of his failure to appear to the court are unknown.

Submission of supporting documents

Evidence in the civil process is of key importance when considering cases on the merits. They reinforced the claims of the plaintiff, the defendant's words were substantiated. In some cases, oral explanations are needed to better understand the problem. Not all evidence in the civil process can be accepted without explanation. In addition, there are situations when, for one reason or another, it is not possible to provide supporting materials. In this case, an oral statement of the parties about their availability is extremely important. At application the court has the right to request the specified proofs. In the civil process, the key role is played by the notification of persons about the scheduled hearing. The timely notification of participants allows them to properly prepare for the proceedings. Accordingly, they have the opportunity to collect the necessary materials and submit them to the court.

Notice

The CPC RF (with comments) states that the period for notifying the respondent should be determined in each case, taking into account the specifics of the case, the parties' awareness of the circumstances of the dispute, the opportunity to properly prepare for the hearing. Timely notification of the date, time and place of the proceedings is mandatory when the participant has requested that the dispute be considered in his absence. In accordance with this, when deciding whether to recognize the defendant as duly notified, the court must establish:

• Which method of notification was chosen.
• A notification was sent in advance.
• Whether the notice is correctly composed, is there any mandatory requisite information provided for in the law.
• Was the notice handed personally, was it done in time?
• Have the court received the documents confirming receipt of the notice (depending on the method of sending).

Conditions

In the Civil Procedural Code of the Russian Federation (with comments), the circumstances are given, depending on which it becomes possible to carry out the case in the absence of the respondent when establishing the fact of his failure to appear, if he was duly notified. Conditions can be classified as follows:

• Required. Their compliance is necessary in the investigation of each case.
• Optional. Their observance depends on the arising circumstances complicating the subject composition.

As one of the mandatory conditions under which it becomes possible to conduct absentia proceedings, the CPC calls the absence of a request from the respondent to consider the dispute without his participation. In court notices sent to the parties to the case, it is proposed to submit all supporting documents, indicate the consequences of their non-appearance and non-attendance at the meeting, explain the duty to state the reasons why the presence is not possible in the proceedings. Along with this, the judge sends a copy of the claim to the respondent, and the plaintiff - a copy of the defendant's explanations, if they were received.

The second mandatory condition, allowing to consider the possibility of starting a correspondence production, CCP calls the non-appearance of the party to which the claims are made.

The third circumstance is the non-reporting by the respondent about the reasons for non-attendance at the meeting and the absence of a request to consider the case without his participation.

The fourth condition is the consent of the plaintiff on the proceedings in the manner of absentee proceedings. The elucidation of this fact acts as a manifestation of the principle of disposability. If the plaintiff agrees to the dispute in the absence of the defendant, the court must clarify the consequences of such action. In particular, the claimant of the claims will not be able to change the subject and grounds of his claims, to increase the volume of claims. The defendant, in turn, gets the right not only to appeal, but also to cancel the absentee decision. In the absence of the consent of the plaintiff, the court will postpone the meeting, notifying about the time, date and place of the new hearing. Only in the presence of these conditions is it possible to conduct absentee proceedings in a civil procedure.

Proceedings in the case

The procedure of absentee proceedings provides for the consideration of the subject, which the defendant was notified in time by sending him a copy of the claim and the attached documents, which justify the claims. At the same time, in the absence of notification to this party of changes in the claims submitted, the court can not consider the case even according to the usual rules. Otherwise, it would contradict the principles of equality and competitiveness of the parties.

Thus, if the plaintiff changes the grounds or the subject of the claim when the defendant fails to appear, the proceedings in the case must be postponed, and the latter should be sent a new notice in compliance with the provisions of Art. 114 CCP. If he does not appear for a new meeting after it was postponed, the dispute, subject to the conditions provided for in Art. 233 of the code, can be considered in its absence.

Court ruling

The issue of the possibility to conduct absentia proceedings should be discussed at the preparatory stage of the meeting after checking the presence of the participants in the hearing, presenting the composition of the court, explaining to the persons their duties and rights. The result of the establishment of the opportunity to initiate proceedings in the absence of the defendant is formalized in the definition. It can be carried out without removal to the advisory room. The definition is recorded in the minutes, which reflects the entire course of the discussion of the issue. The content of the act must comply with the requirements of Art. 225 of the Code.

Correspondence decision

The content of such a resolution, as well as that passed in the course of a traditional hearing, must comply with the requirements of Art. 198 Code. The decision should include an introductory, descriptive, motivational and resolutive parts.

In the first section, the place and date of acceptance of the act, the name of the court, its composition, the secretary of the meeting, other persons who took part in the case, the subject matter of the proceedings or the claimed claim are indicated.

In the descriptive part there are claims of the plaintiff, objections received from the defendant. Here are explanations of other participants in the proceedings.

The reasoning part reflects the circumstances established in the court, the evidence, according to which the conclusions are drawn, the arguments on the basis of which the materials were rejected. This section should contain references to the norms by which the authorized person was guided in making his decision. If the claim is refused in connection with the recognition of the reasons for missing the procedural period, only the establishment of this fact is indicated as disrespectful.

In the operative part, in addition to information on the resolution of the dispute on the merits, on the time and procedure for appealing, explanations should be provided on the rules for filing an application for review of the decision. The decision comes into effect at the end of the terms provided for its challenge.

Effects

After the decision in absentia enters into force, the participants and third parties in the case, their successors can not again file the same claims in court on the same grounds between the same parties. It is not allowed to challenge established legal relations and facts in the framework of other procedures. A correspondence solution has the same strength as any other. Nevertheless, on the decision that came into effect, before the issuance of which all objections and circumstances have not been investigated and established, doubts arise. The norms do not provide for a mechanism ensuring an unavoidable verification of the decision, granting the right to express disagreement on the merits or to declare the cancellation.

Appeal

It acts as an additional guarantee for the defendant. The legislation provides for the possibility to send a statement to the court on the cancellation of the decision with the application of evidence of the validity of the reasons why he could not attend the hearing.

In accordance with the current rules of the decree can be canceled only on the initiative of the defendant. If the application is satisfied, the case is re-opened on its merits. If the defendant does not appear for the new meeting and when he is notified, a decision in absentia is duly passed. Repeated appeal is not allowed. Production begins all over again. In case of cancellation, only the decision itself is recognized, but not explanations of the plaintiff and other materials on the case, which were collected and presented in previous hearings. Both sides have the right to present new evidence. The plaintiff also has the opportunity to commit acts that are directed at disposing of the subject matter of the dispute that has arisen.

Conclusion

The cancellation of the absent judgment is allowed in case the court establishes the validity of the reasons for the defendant's failure to appear. They must be supported by appropriate documents. In Art. 242 ГПК bases are established, according to which the correspondence decision can be canceled. The presence of only one of them does not imply recognition of the invalidity of the resolution.