Inspection and investigation of written and material evidence at their location
The Arbitration Court may conduct an examination and examination of written and material evidence at their location in the event that it is impossible or difficult to deliver to the court (Article 78 of the AIC).
On the conduct of the examination and investigation on the spot by the court a determination is made. Inspection and examination of written and material evidence is conducted by the arbitration court with notification of the persons participating in the case, the place and time of the examination and investigation. The absence of duly notified persons does not prevent the conduct of inspection and research.
If necessary, experts and witnesses may be summoned to participate in the examination and examination of written and material evidence by the arbitral tribunal, as well as photographs, audio and video recordings.
Immediately during the examination and examination of written and material evidence at their location, the arbitral tribunal shall draw up a protocol in accordance with the procedure established by Art. 155 of the agroindustrial complex. It is accompanied by documents compiled or verified upon inspection, photographs taken, audio and video recordings.
Material evidence that is subject to rapid damage is immediately inspected and investigated by the arbitration court at their location. After the inspection, they are subject to implementation in the prescribed manner.
On the place and time of inspection and examination of exhibits that are subject to rapid damage, the persons participating in the case are notified by the arbitration court. The absence of duly notified persons does not prevent in their absence the examination and examination of physical evidence subject to rapid damage.
Explanations of persons participating in the case
The explanations of the persons participating in the case are also one of the types of evidence in the arbitration process.
The person participating in the case submits his explanations to the arbitration court about circumstances known to him, relevant to the case, in written or oral form. At the proposal of the court, the person participating in the case may state his explanations in writing (Article 81 of the APC).
Explanations, stated in writing, are attached to the case materials. The explanations, stated in writing by the persons participating in the case, are announced in the court session. After the announcement of the explanation, the person who submitted this explanation has the right to give explanations concerning him, as well as to answer the questions of other persons participating in the case and the arbitration court.
As evidence, explanations are provided for persons participating in the case and other participants in the arbitration process, obtained by using videoconferencing systems (Part 2, Article 64 of the APC).
Appointment of expertise
In order to clarify the issues that arise during the examination of the case requiring special knowledge, the arbitration court may appoint an expert examination on the petition of the person participating in the case or with the consent of the persons participating in the case (Article 82 of the APC).
In arbitration proceedings there is an unspoken provision: judges have the knowledge of law (even Roman lawyers noted that juruscorumlegas - judges know laws) and elementary knowledge in other areas, in particular knowledge of well-known facts, build your own judgments.
Expertise is a scientific method by which arbitration judges who do not have special knowledge, analyze the circumstances of the case and the existence of a certain connection between these circumstances. In the resolution of the case, examination is a kind of consultation of the court by specialists, although it is not recognized as a means of proof by itself. Proof of importance for the case will have only the findings of expert research.
The expert opinion reflects the position of modern science, confirmed by practice; ascertain the circumstances of a particular case; a conclusion is drawn from the established scientific regularity in relation to this particular case, the materials of the particular civil case under consideration.
Therefore, in arbitration proceedings, the examination provides the court with new means of proof and, thereby, facilitates the lawful and justified administration of justice in a particular case.
In the arbitration process, the examination is conducted on a wide range of issues: for analyzing the definition of the quality of goods and products, the amount of work performed, authorship, etc. In this regard, there are a variety of forensic expertise: commodity, forensic accounting, forensic and construction, etc.
If the purpose of the examination is prescribed by law or provided for in the agreement, or is necessary to verify the application for falsification of the evidence submitted, or if additional or re-examination is necessary, the arbitral tribunal may appoint an expert examination on its own initiative.
The scope and content of issues for which an examination is to be conducted is determined by the arbitration court.
The persons participating in the case have the right to submit to the arbitration court questions that must be clarified during the examination. Deviation of these issues the court must motivate.
The persons participating in the case have the right: to apply for the involvement of experts indicated by them as experts or on conducting expert examinations in a specific expert institution; to challenge the expert; to request that additional questions put to the expert be included in the definition of the appointment of an expert examination; give an explanation to the expert; to get acquainted with the conclusion of the expert or the message about impossibility to give the conclusion; apply for additional or re-examination.
On the appointment of an expert examination or on the rejection of an application for the appointment of an expert examination, the arbitral tribunal shall issue a ruling specifying: the grounds for the appointment of the examination; surname, name and patronymic of the expert or the name of the expert institution in which the examination is to be conducted; questions posed to the expert; materials and documents available to the expert; the period during which an examination is to be conducted and an opinion must be submitted to the arbitration court.
The definition also indicates the expert's warning about criminal liability for giving a knowingly false conclusion.
Expertise is carried out by state judicial experts on behalf of the head of the state forensic expert institution and other experts from among persons with special knowledge (Article 83 of the APC). Examination can be entrusted to several experts.
The persons participating in the case may be present at the examination, except for cases when such presence may interfere with the normal work of experts, but not have the right to interfere in the course of research.
When the expert draws up the conclusion, as well as at the stage of the meeting of experts and the formulation of conclusions, if the forensic examination is carried out by an expert commission, the presence of participants in the arbitration process is not allowed.
Types of expertise. Commission expertise is conducted by at least two experts of one specialty. The commission character of the examination is determined by the arbitration court (Article 84 of the APC).
If, based on the results of the conducted studies, the experts' opinions on the issues in question coincide, the experts draw up a unified conclusion. In case of disagreement, each of the experts participating in the examination gives a separate opinion on the issues that caused the experts' disagreement.
Comprehensive expertise is conducted by at least two experts of different specialties (Article 85 of the agrarian and industrial complex).
The experts' conclusion indicates what kind of research and how much each expert has done, what facts he has established and what conclusions he has reached. Each expert, who participated in the complex examination, signs the part of the conclusion that contains a description of his research and is responsible for it.
The general conclusion is made by experts who are competent in assessing the results obtained and formulating this conclusion. In the event of a disagreement between the experts, the results of the research shall be formalized in accordance with Part 2, Art. 84 APK.
If there is insufficient clarity or completeness of the expert's conclusion, as well as when questions arise regarding the previously investigated circumstances of the case, additional expert examination may be appointed, which is entrusted to the same or to another expert (Part 1, Article 87 of the APC).
In case of doubt in the reasonableness of the expert's conclusion or the presence of contradictions in the conclusions of the expert or the commission of experts on the same issues, a second expert examination may be appointed, the conduct of which is entrusted to another expert or another commission of experts (Part 2, Article 87 of the APC).
Expert's conclusion. Based on the conducted research and taking into account their results, the expert on his own behalf or the expert commission give an opinion in writing and sign it (Article 86 of the APC).
In the opinion of the expert or the commission of experts should be reflected:
• time and place of forensic examination;
• grounds for forensic examination;
• Information about the state forensic expert institution, about the expert (name, surname, name, patronymic, education, specialty, length of service, academic degree, academic rank, position), who were commissioned to conduct forensic examination;
• Records on the prevention of the expert in accordance with US law on criminal liability for giving knowingly false imprisonment;
• questions posed to the expert or the committee of experts;
• research objects and case materials submitted to the expert for forensic examination;
• the content and results of the research, indicating the methods used;
• evaluation of research results, conclusions on the issues raised and their rationale;
• Other information in accordance with federal law.
The materials and documents illustrating the conclusion of the expert or expert committee are attached to the conclusion and serve as its component. If the expert, during the examination, establishes circumstances that are relevant to the case and for which he was not asked questions, he is entitled to include conclusions about these circumstances in his conclusion. The expert's report is announced in the court session and is investigated along with other evidence in the case. At the request of the person participating in the case, or on the initiative of the arbitral tribunal, the expert may be summoned to the court session.
The expert after the announcement of his conclusion has the right to give him the necessary explanations, and also must answer the additional questions of the persons participating in the case and the court. His answers to additional questions should be recorded in the record of the court session (Article 86 of the APC).
Advisors of the apparatus of a specialized arbitration court, who have the qualifications appropriate to the specialization of the court, may be recruited as specialists.
The specialist gives advice in good faith and impartially on the basis of professional knowledge and inner conviction.
The consultation is given orally without conducting any special studies, appointed on the basis of the court's decision.
In order to obtain clarifications and additions to the advice provided to a specialist, questions may be asked by the court and persons involved in the case (Article 87.1 of the AIC).
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