Persons participating in the case
As a result of studying the chapter, the student must:
■ the concept and composition of the persons participating in the case (parties, third parties, prosecutors, applicants, interested parties, etc.);
■ the nature and essence of civil procedural rights and obligations;
■ procedural complicity, succession and the procedure for replacing the improper defendant;
■ types and essence of third parties in civil proceedings;■ features of the legal status of the prosecutor and persons seeking court protection of the rights, freedoms and legitimate interests of others;
be able to
■ operate with legal concepts and categories of the institution of persons participating in the case;
■ skill analysis of the activities of various persons involved in the case, as well as the exercise of their procedural rights and duties when the court considers civil disputes.
Parties in civil proceedings
Modern procedural legislation does not give the concept of parties. This is partly due to the fact that in the theory of civil procedural law there is no consensus on this issue. Even pre-revolutionary authors pointed out that the parties to civil proceedings are the plaintiff and the defendant (KI Malyshev). This opinion was also accepted by the Soviet procedural school. Meanwhile, a number of authors drew attention to the fact that the notion of parties includes such signs that significantly expand the scope of the concept of "side" (MA Vikut, MS Shakaryan), which makes it possible to describe systematically one of the main subjects of civil procedural relations in various types of civil proceedings.
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The current CCP is extremely inconsistent with the issue under consideration. In particular, in Art. 38 ГПК contains a rule according to which parties - is the plaintiff (actor) and the defendant (reus), i.e. participants in the process, whose subjective dispute through the lawsuit is required to authorize the court. It follows that in the other types of civil proceedings, the parties are not present. At the same time, Art. 129 ГПК says that copies of the decision on cancellation of the court order are sent to the parties not later than three days after its issuance. All contradictions can be removed only if we recognize that the parties are in the claim, public, mandative, compensatory, and sometimes in special production.
As you know, at the heart of any dispute is a conflict of interest. At the heart of a civil dispute that is resolved in court, there is also a conflict of legal interests. And as long as there are interrelated categories "litigation" and "conflict of interest", then there must be carriers of these interests, which are parties. In litigation, the dispute about subjective rights and obligations is not denied by anyone, the plaintiff when referring to the court is considered an alleged subject of material dispute until the decision on the case, therefore, it requires legitimatio activa, i.e. he must prove his rights and duties, otherwise he refuses to satisfy the claims, therefore, there is no need for a procedure to replace the improper plaintiff with the proper one. In this case, the plaintiff may be not only an individual or an organization that independently applies to the judicial authorities, but also the one in whose interests the claim was submitted to the court (Part 2, Article 38 of the CCP). The application legitimizes the defendant legitimatio passiva, i.e. facts are identified that pre-convince the court that the person in question has violated the rights or disputed the legitimate interest of the plaintiff. In some cases, the necessary & quot; tips & quot; gives in the decisions of the Plenum of the Supreme Court of the USA. For example, in its resolution of April 29, 2010 No. 10/22 "On some issues arising in judicial practice in resolving disputes related to the protection of property rights and other real rights"; the following is said: "In the sense of the second paragraph of paragraph 2 of Article 222 of the Civil Code of the United States, the defendant for the claim for demolition of unauthorized construction is a person who carried out unauthorized construction. When creating an unauthorized construction with the involvement of contractors, the defendant is the customer as a person, on whose instructions an unauthorized construction was carried out. In the case of an unauthorized structure in the possession of a person who did not perform unauthorized construction, the defendant in the case of the demolition of unauthorized construction is the person who would become the owner if the building was not unauthorized. For example, in case of alienation of an unauthorized structure, its acquirer; when making an unauthorized construction as a contribution to the authorized capital - a legal entity that received such property; in the event of the death of an individual or the reorganization of a legal entity, the person who obtained the property in his possession. "
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In the decision of the Plenum of the Supreme Court of the United States of 26.01.2010 No. 1 "On the application by courts of civil law governing relations for obligations resulting from harming the life or health of a citizen" It should be noted that when determining the subject of liability for damage caused to the life or health of third parties by a leased vehicle (its mechanisms, devices, equipment) transferred to possession and use under a lease (time chartering) of a vehicle with a crew, for the damage is borne by the lessor, who, in order of regress, has the right to reimburse the amounts paid to third parties at the expense of the lessee, if it proves that the harm was due to the fault of the lessee (Article 632 and 640 CC). If the vehicle was transferred under a lease agreement without providing management and technical maintenance services, the damage caused is subject to compensation by the lessee himself (Articles 642 and 648 of the Civil Code).
If, subsequently, during the preparation of the case or during its proceedings, it turns out that the person brought to answer, in fact, should not perform legal duties with respect to the plaintiff, then with the consent of the latter the court allows the replacement of the improper defendant with the proper one. In the absence of such an agreement, the court shall review the case on the basis of the presented claim and issue a decision on refusal to satisfy the material and legal requirements (Part 2, Article 41 of the Polish Law).
In proceedings for cases arising from public relations , the peculiarity of the dispute lies in the fact that one of the parties is always a state institution or its official (AT Bonner), so here private individuals who are granted the status of applicants or complainants, as well as state authorities, < strong> responding to an application or complaint, ie. Interested parties.
Presence of parties in mandative production is recognized by the legislator, thereby eliminating such a criterion as a dispute. Apparently, the allocation as parties to the orderly production of the recoverer and debtor is due to the fact that they hypothetically have a legal interest : if the former expects to be granted protection by issuing a court order on an indisputable claim, the latter has the right to object to the order of execution of the court decision, thus giving the case a contentious character.
In compensatory production , the legislator does not deny the existence of a dispute about the law, nor the presence of the parties. So, according to Art. 244.5 CCP, if the application for award of compensation for violation of the right to legal proceedings or the right to enforce a judicial decision within a reasonable time is left without motion, the private complaint is considered without notification of the parties according to the rules of Ch. 39 CIC. However, the legislative decision on the name of the parties to the compensatory production is very inconsistent and amorphous: the subject seeking legal protection is referred to as an interested person, although Ch. 22.1 The CCP is located in sub-section. II & quot; Litigation & quot;). By part 4 of Art. 244.4 The CCP copies of the decision on accepting the application for awarding compensation are sent to the applicant, to the body or to the official responsible for the execution of the judicial act, as well as to other interested persons. i> other interested persons are persons whose actions (inaction) resulted in an increase in the term of legal proceedings or the execution of a judicial act. In particular, a copy of the definition can be addressed to the chief administrator of the federal budget, the chief administrator of the budget of the subject of the United States, the chief administrator of local budget funds, the Federal Treasury.
In special production , in individual cases, there is directly a dispute about the right, for example, on applications for compulsory hospitalization of a citizen in a psychiatric hospital or for compulsory psychiatric examination, on applications for notarial acts or refusal to commit them , which led some proceduralists to the idea of the erroneousness of referring such cases to special production (MS Shakaryan, GL Osokina, IM Zaitsev); or there is a dispute about the legal status, for example, in cases of declaring a minor fully capable (emancipation), limiting the capacity of a citizen, recognizing the incapacitated citizen, etc. It is not difficult to see that a dispute over a legal status, either explicit or implicit, actually takes place, otherwise a minor, if this is not prevented by the lack of consent of the parents, adoptive parents or guardians, could use the simpler mechanism of emancipation specified in art. 27 GK, and apply to the guardianship and trusteeship bodies. This dispute between Applicant and Interested Parties must be resolved in accordance with the specifics of the law.
In the literature and practice devoted to the analysis of problems of civil procedural law, usually indicate the five main features of the parties, which makes it possible to distinguish them from other persons involved in the case:
1) the parties, being the owners of the alleged subjective rights and obligations, have opposite legal interests to the outcome of the case, if it coincides, then this leads to the cessation of civil proceedings;
2) the parties conduct the case in court on their own behalf and in their own interests;
3) the decision on the case is made in the name of the parties;
4) the legal force of the judgment extends to the subjective rights and obligations of the parties, affecting them;
5) the parties bear all the legal costs of the case.
The Parties have the widest subjective procedural rights and obligations. At the same time, subjective procedural law understand the established and secured by the rules of civil procedural law a measure of possible conduct of a party provided with legal duties of other persons, whereas subjective procedural duty is an established and provided by the norms civil procedural law measure of the due conduct of a party, consistent with the law.
All the procedural rights and duties given in art. 35, 39, etc. CCP, classified into general (get acquainted with the materials of the case, make extracts from them, make copies, claim, present evidence, participate in their research, to ask questions to witnesses, experts and specialists) and special, available primarily from the parties (conclude an amicable agreement, conduct a mediation procedure, change the basis or subject matter of the claim, increase or decrease the amount of claims , to withdraw from the claim, to recognize the claim, to ask for exemption from payment to the state Twain duties or reducing it, to get the executive document). Some actions synthesize in themselves both rights and duties. Thus, the presentation of evidence is not only a subjective procedural right, but also a duty, the non-fulfillment of which entails the onset of legal liability.
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