Cases on applications for restoration of lost judicial proceedings
In accordance with Ch. 38 ГПК restoration of the lost judicial proceeding is carried out by rules of special manufacture.
According to the rules of the said chapter, restoration is possible only with respect to, first, lost completely or in part of the judicial process in the civil case and, secondly, completed by passing a decision or issuing a ruling on the termination of judicial proceedings. The legislator does not provide for the possibility of restoring the lost production at the request of the prosecutor, as well as on the initiative of the court itself (as it was earlier in the Civil Procedure Code of the RSFSR in 1964).
In case of loss of the case, which was not considered on the merits, the plaintiff in accordance with Part 1 of Art. 316 CCP has the right to file a new claim.
In a statement on the restoration of lost judicial proceedings must be indicated:
- on the restoration of which legal proceeding the applicant requests;
- whether the decision on the merits was taken by the court or the proceedings were dismissed;
- what procedural position the applicant held in the case;
- who else took part in the case and in what procedural position;
- the residence (location) of these persons
- what is known to the applicant about the circumstances of the loss of production, the location of copies of production documents or information about them;
- which documents the applicant deems necessary;
- for what purpose is it necessary to restore them.
The application shall be accompanied by documents that have been preserved and relevant to the case or copies thereof, even if they are not certified in accordance with the established procedure. The applicant is exempted from the payment of court expenses incurred by the court in the consideration of the case on the restoration of the lost judicial proceedings. However, with a knowingly false statement, the court costs associated with initiating the case on the application for restoring the lost judicial proceedings are subject to recovery from the applicant in full.
If the application for the restoration of lost judicial proceedings does not specify the relevant purpose of the appeal, the court leaves the application without motion and provides the applicant with a time limit for the purpose of restoring the lost judicial proceedings. If the purpose of the appeal indicated by the applicant is not related to the protection of his rights and legitimate interests, the court refuses to initiate a case on the restoration of the lost judicial proceedings, or, if the case was initiated, leaves the application without consideration with a reasoned decision.
According to Part 1 of Art. 317 of the CCP, not all lost judicial proceedings are subject to recovery, but only the decision of the court or a ruling on termination of the judicial process.
The decision of the court to restore the lost decision or determine the court to terminate the court proceedings indicates on the basis of what data submitted to the court and examined in the court session with the participation of all participants in the process for lost production, the court finds the content of the restored judicial decision established. The reasoning for the court decision on the restoration of lost production also indicates the court's findings on the evidence of the circumstances that were discussed by the court and what procedural actions were carried out in lost production.
In case of insufficient collection of materials for the exact restoration of the judicial decision, the court shall terminate the ruling by the ruling on the restoration of the lost judicial proceedings and explain to the persons participating in the case the right to sue in the general order. Similarly, the court arrives and in the case of a request for restoration of the lost judicial proceedings for the purpose of its execution, if the time for the submission of the writ of execution has expired and the court does not recover.
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