Decisions of the court of first instance
As a result of studying the chapter, the student must:
■ the notion and types of court orders of first instance;
■ requirements that a court decision must meet;
■ structure and content of the court decision;
■ the legal force of the court decision and its related properties;
■ types of court of first instance and their properties;
be able to
■ analyze, interpret and correctly apply the legal norms governing the requirements for the judgments of the court of first instance;
■ skills analysis of the judgments of the court of first instance.
The concept and types of decisions of the court of first instance
The court's activities in the administration of justice in civil cases are carried out in the established procedural form, which finds its logical expression in the decisions to be rendered, which are understood as written acts of the court (judge) with the strong judgments in them regarding the resolution of material and procedural legal issues. In accordance with Art. 13 CCP courts of first instance make decisions in the form of orders, decisions and definitions. But it should also be taken into account that when reviewing and solving by courts of cases arising from administrative offenses, the final act is the resolution itself.
As stated in part 1 of Art. 121 ГПК, court order - a judicial decision handed down by the judge solely on the basis of an application for collection of sums of money or for demanding movable property from the debtor under the requirements of art. 122 GPC. It is issued as a simplified procedural mechanism for the quick settlement of legal conflicts not burdened by a dispute over the law, and is also an executive document.
In accordance with the legislative wording court decision - adopted by the name of the United States, the decision of the court of first instance, by which the matter is resolved on its merits (Part 1, Article 194 of the CCP). Paragraph 13 of the Resolution of the Plenum of the Supreme Court of the USA No. 23 underlines this provision and notes that the range of issues that make up the content of the decision is defined in art. 198, 204-207 CCP.
In the legal literature it is stated that the court decision is an act of justice for which the case was initiated, since it is through this act that the violated or challenged right is protected regardless of whether the claim is satisfied or refused (I.K Piskarev). The court's decision as a document issued on behalf of the state is an order, a command, an imperative addressed to the participants in the process and to the relevant bodies of the state and organizations. The decision of the court, being the result of judicial activity in the consideration of the case on the merits, is an act of application of the norms of law containing the final conclusion of the court on the rights and obligations of the parties and individualizing them, prescribing them in the future certain behavior. As VI Tertyshnikov points out, the court decision is an act of the judiciary that protects the violated or challenged rights of citizens and organizations by confirming the presence or absence of legal relationship and prescribing a certain behavior in the future.
When considering each case, the court makes one decision. However, in some cases, several decisions may be made in the case. So, if, on any of the requirements for which the persons participating in the case provided evidence and provided explanations, the court decision was not adopted, then he has the right to take an additional decision (Clause 1, Part 1, Article 201 of the Civil Procedure Code) . A similar right to make more than one decision in a case arises with the court in case of permission to it for the issue of the right without specifying the amount of the amount awarded, the property to be transferred, or the actions that the respondent is obliged to perform (paragraph 2, part 1, article 201 of the CCP ), as well as in the event that the court does not resolve the issue of court expenses (clause 3 of Part 1 of Article 201 of the Civil Procedural Code).
In addition, as MA Vikut points out, if it is difficult to make a detailed calculation of claims in a criminal trial without considering the criminal case or without receiving additional materials, the court is entitled to a verdict (acting in this case in this case part in the role of an interim solution) to recognize the civil plaintiff's right to satisfy the claim and refer it to the appropriate court for determining in the civil procedure the specific amount of satisfaction.
Also, interim decisions are taken by the court in the consideration of cases on compensation for harm caused to the health of the minor. The first (intermediate) decision for a minor is reimbursed for expenses caused by damage to health, and upon reaching the age of 14 the second decision, in addition to the first one, compensates for the harm associated with the loss of his ability to work or its reduction.
In paragraph 17 of the ruling of the Plenum of the Supreme Court of the USA No. 23 it is noted that in connection with the definition by the civil procedural legislation of a different procedure for examining cases of certain types of proceedings (litigation, special, proceedings in cases arising from public relations, etc. ) The CCP provides for all a uniform form for ending the trial of the case on the merits by taking a decision, with the exception of an orderly production. Courts should bear in mind that, as a general rule, the requirements of Art. 198 GPK on the order of the presentation of decisions are mandatory for all types of productions.
The definition of the court - an interim court order of the court of first instance, which does not resolve the matter on the merits (part 1, article 224 of the CCP).
In cases of termination of proceedings in a case when the settlement of an amicable agreement is approved by the court, as well as in case of the refusal of the plaintiff from the claim and acceptance by the court, the court also does not take a decision, but issues a ruling, although the matter is essentially resolved. The reason is that in such cases the court does not itself resolve the case on its merits, but only approves (accepts) the party's chosen (plaintiff) way of resolving the case.
An exception to this rule is fixed in Part 4 of Art. 411, part 4 of Art. 413, art. 422 and 427 ГПК: the court irrespective of results of consideration of business takes out not the decision, and definition. This normative regulation seems to be conditioned by the fact that the case has already been examined and resolved by another jurisdictional body - a foreign court/arbitration court, the United States arbitration court, and the court of general jurisdiction, without reviewing the case on its merits, checks the decision made in the law, or gives it the property performance.
The court has the right to make a particular determination when revealing cases of violation of the law and send it to the relevant organizations or relevant officials who are obliged within a month to report on the measures they have taken.
Common to all types of judicial decisions is that they contain an expression of the will of the state in the face of the civil court (MA Vikut).
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