Demanding, Representing and Providing Evidence
Demanding and presenting evidence are elements of the institution of evidence. The person participating in the case, or his representative, who does not have the opportunity to independently obtain the necessary proof from the person from whom it is located, in order to establish the judicial truth in the case, has the right to apply to the arbitration court for the demand for this evidence (Article 66 of the APC) .
The petition must indicate the evidence sought; It is indicated what circumstances relevant to the case can be established by this evidence; the reasons preventing the receipt of evidence are listed; the place of its location is named.
When the motion is satisfied, the court will demand the appropriate proof from the person from whom it is located. In case of failure to submit evidence on cases arising from administrative and other public legal relations by bodies of state power, local self-government bodies, other bodies, officials, the arbitral tribunal may demand evidence from these bodies on its own initiative.
Copies of documents requested by the arbitration court on their own initiative are sent by the court to persons participating in the case, if they do not have these documents.
The arbitration court shall issue a ruling specifying the time and order of presenting the evidence. A copy of the decision shall be sent to the persons participating in the case, as well as to the person who has the evidence requested by the court.
The person who has the evidence sought by the court directs him directly to the arbitration court. If necessary, at the request of the court, the evidence sought may be issued to the person having the appropriate request for presentation to the court.
If the person from whom the arbitration court requires proof, has the opportunity to present it at all or to submit it within the period established by the court, it is obliged to notify the court about it, specifying the reasons for not submitting it within five days from the date of receipt of the copy of the determination to demand evidence.
In the event of failure to fulfill the obligation to present the evidence requested by the court for reasons recognized by the arbitral tribunal as disrespectful, or the court's failure to notify the evidence in general or at the set time, the court imposes on the person from whom the evidence is sought a judicial fine in the order and in amounts that are established gl. 11 APK from 2500 to 100 000 rubles.
On imposing a judicial fine, the arbitral tribunal shall issue a ruling specifying a new term when the evidence sought is to be presented. In the event of failure to comply with these requirements within the time specified in the ruling, the arbitration court may re-impose a fine.
However, the imposition of judicial fines does not release the person from whom the claimed evidence is located, from the obligation to submit it to the arbitration court. The ruling of the arbitration court on imposition of a judicial penalty may be appealed within ten days from the date of receipt of the copy of the ruling.
The arbitration court considering the case, in case of impossibility of obtaining evidence located in the territory of another US subject, in the manner provided for in Art. 66 agrarian and industrial complex, have the right to instruct the relevant arbitration court to carry out certain procedural actions. On this instruction a determination is made, which briefly describes the content of the case in question, specifies the circumstances to be ascertained, the evidence that the arbitration court fulfilling the commission must receive.
A copy of the decision is sent to the court, which is given a letter of committal. The determination of the court order is mandatory for execution by the arbitration court to which the instruction was given and must be executed no later than ten days after the date of receipt of its copy.
The court order is executed in the court session of the arbitration court as follows. Initially, the persons participating in the case are notified of the time and place of the court session. The failure of the persons notified in due time about the time and place of the court session is not an obstacle to holding the meeting, if this does not contradict the substance of the commission. A determination is made on the performance of the letter of assignment, which, with all materials collected during the execution of the letter of request, is immediately forwarded to the arbitration court that sent the court order. If it is impossible to execute a court order for the reasons that depend on the court, this is indicated in the definition.
The persons participating in the case, witnesses, experts who gave explanations, testimony or conclusions to the arbitral tribunal that carried out the letters of command, in case of their participation in the court session of the arbitral tribunal considering the case, give explanations, testimonies and conclusions in the general order.
Submission of evidence. It is carried out by persons participating in the case, and their representatives. This is not within the competence of the court (except when he puts the documents received on his request for discussion on the attachment to the case materials). Copies of documents submitted to the court by the person participating in the case are forwarded to other persons participating in the case, if they do not have these documents.
The arbitral tribunal has the right to invite the persons participating in the case to submit additional evidence necessary to clarify the circumstances that are important for the proper consideration of the case and the adoption of a legal and justified judicial act prior to the commencement of the court session or within the time limit established by the court. >
If the circumstances that are subject to proof change in connection with the change in the plaintiff's grounds or subject matter of the claim and the presentation of the counterclaim by the respondent, the arbitration court may set a deadline for submitting additional evidence.
In itself, the presentation of evidence is very important, because the violation of the order of presentation and consolidation of evidence deprives the information of evidentiary strength and the value of evidence.
Providing evidence. Persons involved in a case who have reason to fear that submission to the arbitration court of the necessary evidence will be impossible or difficult can apply for securing this evidence.
Taking measures to secure evidence is caused by a confluence of circumstances in which evidence is on the verge of their disappearance, or by the fact that it is impossible or difficult to present them to the court at the time of the examination of the case. So, according to Art. 72 APK, the persons participating in the case who have reason to fear that submission to the arbitration court of the necessary evidence will be impossible or difficult, can apply with the application for securing this evidence.
The application for securing evidence will be submitted to the arbitration court, in whose proceedings the case is located. It should include: evidence that must be provided; circumstances for the confirmation of which this evidence is necessary; reasons, prompted to apply for their provision.
The evidence is provided by the arbitration court according to the rules established in the APC to secure the claim.
Unlike courts of general jurisdiction, where actions to secure evidence are only made after the institution of the case, the arbitral tribunal, at the request of the organization or citizen, has the right to take measures to secure evidence pending the filing of an action in the manner provided for in Art. 99 APK. The arbitral tribunal, at the request of the organization or citizen, has the right to take measures to secure evidence upon presentation of the claim in the manner provided for the application of the preliminary interim measures. The arbitral tribunal shall satisfy the request for provisional securing of evidence if the applicant has cited the circumstances for which proof is necessary, as well as the reasons that prompted them not to apply for their provision. Otherwise, the court refuses to satisfy the application.
Provision of evidence can be made not only by the court in which the arbitration has been instituted, or by any other court depending on the place of residence of the witness, the location of documents, material evidence to be examined.
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