As a result of studying Ch. 14 students must:
• The concept, purpose and objectives of the trial; the order of the court session;
• Adoption and announcement of a court decision;
• the adjournment of the proceedings, the suspension of proceedings in a civil case, the termination of a case without a court decision;
• the procedure for keeping the record of the court session and bringing remarks to it;
be able to
• apply the experience of international and United States judicial practice in arbitration proceedings;
• The skills of applying modern legal tools to solve practical problems.
The concept, purpose and objectives of the trial
In arbitration proceedings, a trial is one of the stages of a trial, the task of which is to examine and resolve the civil case on the merits by the court of first instance.
The trial is an independent procedural function of arbitration proceedings. It is regulated by specific arbitration procedural rules and has a jurisdictional character, as the court applies the relevant rules of law for legal and reasonable consideration and resolution of the case.
The task of the trial is to remove from the legal relations of the parties the dispute over the law or eliminate the ambiguity in the legal status of a citizen or organization in order to protect their violated or challenged rights and legitimate interests.
The advantage of the trial is the availability of judicial protection of violated or disputed rights, the possibility of voluntary settlement of the dispute about the right of its participants in court, the speed and procedural efficiency of the proceedings, the creation of conditions for real (and not imaginary) restoration of the rights of legally concerned persons. >
In the trial, justice is directly administered. The function of the trial covers a large-scale and diverse procedural activity, which it is customary to delineate for the consideration of the case and its resolution.
Consideration of the case consists in actions aimed at the movement of arbitration proceedings; providing the persons participating in the case with the necessary legal assistance in the exercise of subjective rights; examination of the materials of the case in question, the positions of the parties, the actual circumstances of the case and the evidence submitted.
The resolution of the case consists in the jurisdictional application of the relevant legal norms and is reduced to the adoption by the court of the decision or determination, its declaration and explanation.
One-person and collegial trial of cases in court. In accordance with Art. 152 of the agrarian and industrial complex the case must be considered by the arbitration court of first instance and the decision is taken within a period not exceeding three months from the date of receipt of the application to the arbitration court, including the time for preparing the case for trial.
The cases in the first instance of the arbitration court are considered by the judge alone, if the collegial examination of the case is not provided for by the agrarian and industrial complex.
Peer review of cases in the arbitration court of first instance is carried out in the composition of three judges or a judge and two arbitrators.
In the first instance of the arbitral tribunal, the collegial composition of judges examines the cases:
• relating to the jurisdiction of the RF Supreme Arbitration Court;
• about challenging normative legal acts;
• sent to the arbitration court of first instance for a new consideration with indication of collegial consideration of the case, decisions on collegial consideration of which were taken by the chairman of the judicial staff in connection with their complexity on the basis of a motivated statement of the judge (Article 17 of the APC).
The above categories of cases, as well as cases related to administrative and other public legal relations, and cases of special proceedings are not subject to review with the participation of arbitration assessors.
The issues arising in the consideration of the case by a court in collegial composition are resolved by the judges by a majority of votes. None of the judges has the right to abstain from voting. The judge (presiding in the meeting) votes last.
A judge who does not agree with the opinion of the majority is required to sign a judicial act. However, he has the right to state in writing a dissenting opinion that is attached to the case, but not disclosed.
The arbitration court of first instance in the composition of the judge and two arbitration assessors considers economic disputes and other cases arising from civil and other legal relations if one of the parties declares an application for consideration of the case with the participation of arbitration assessors.
Cases in the arbitration court of the appellate and cassational instances, as well as in the order of supervision are considered collectively in the composition of three or another odd number of judges (Article 17 of the AIC).
In a collegial case, one of the judges presides over the court session.
Formation of the composition of the arbitration court. The composition of the court for the consideration of a particular case is formed taking into account the burden and specialization of judges in an order that excludes the influence on its formation of persons interested in the outcome of the trial.
A case, which has been started by one judge or composition of the court, must be considered by the same judge or composition of the court.
Replacement of a judge or one of the judges is possible in case of a declared and satisfied self-challenge or challenge of a judge; prolonged absence of the judge due to illness, leave, stay at school.
Offices of judges, assessors, conditions and order of satisfaction. The judge has no right to participate in the consideration of the case and is subject to challenge if he:
• During the previous examination of this case, he participated in it as a judge and his repeated participation in the consideration of the case in accordance with the APC is inadmissible;
• During the previous examination of this case, he participated as a prosecutor, assistant judge, secretary of the court session, representative, expert, interpreter or witness, as a judge of a foreign court, arbitration court or arbitration;
• is a relative of the person participating in the case, or his representative;
• personally, directly or indirectly interested in the outcome of the case or there are other circumstances that may cast doubt on his impartiality
• is or was previously in official or other dependence on the person participating in the case, or his representative;
• made public statements or gave an assessment on the merits of the case in question (Article 21 of the APC).
Self-challenge (or challenge) should be motivated and declared before the beginning of the consideration of the case on the merits (Article 24 of the APC). During the consideration of the case, the application for rejection or for challenge is allowed only if the basis for the withdrawal or surrender has become known to the person claiming withdrawal or challenge after the commencement of the substantive examination of the case. A repeated application for challenge on the same grounds can not be filed by the same person.
In case of an application for a challenge, the arbitral tribunal hears the opinion of the persons participating in the case, as well as the person who is challenged if he wishes to give an explanation.
The question is resolved about the withdrawal:
• the judge who deals solely with the case - by the chairman of the arbitration court, the deputy chairman of the arbitral tribunal or the chairman of the judicial staff;
• The judges, when examining a case in collegial composition, by the same composition of the court by a majority of votes in the absence of a referee (with an equal number of votes cast for challenge and against challenge, the judge is deemed to be taken away);
• to several judges or the entire composition of the court - the chairman of the arbitral tribunal, the deputy chairman of the arbitral tribunal or the chairman of the judicial staff;
• Assistant judge, clerk of the court session, expert, interpreter - by the composition of the court reviewing the case (Article 25 of the APC).
Based on the results of consideration of the issue of self-withdrawal or of challenge, a determination is made.
The judge who has declared his self-challenge, as well as the judge, in respect of whom the application for challenge is satisfied, is replaced by another (Article 26 of the APK). In the event that the application for self-challenge or the challenge of a judge or several judges or the entire composition of the court is satisfied, the case is examined in the same arbitration court, but in a different composition of the judges.
If, as a result of satisfaction of rejections and challenges, it is impossible to form a new court structure for the consideration of this case in the same arbitration court, the case is transferred to another arbitration court of the same level as established by Art. 39 APC.
Court session of the arbitral tribunal. The court session in the arbitration process is a procedural form of the trial established by the arbitration procedural code. A trial without a court session can not exist.
However, these concepts are significantly different from each other, as they relate both the content (the trial) and the form (the court session).
Proceedings of a particular civil case may take place not in one case but in several court hearings (when the case is adjourned). But in any case, the case must be considered by the arbitration court of first instance within a period not exceeding three months from the date of receipt of the application to the arbitration court, including the time for preparing the case for trial and for taking a decision on the case (Article 152 of the APC). The period for which the proceedings were suspended or the trial was postponed is not included in the time limit for the consideration of the case, but is taken into account when determining a reasonable period of judicial proceedings.
In addition, the court session is held not only for the investigation of civil cases, but also for the resolution of various procedural issues, for example, issues related to court costs, securing suits, etc.
In the court session it is customary to allocate the preparatory part, the consideration of the case on the merits, the judicial debate, the adoption and announcement of the decision (determination).
The case is heard in the court session of the arbitration court with mandatory notification of the persons participating in the case about the time and place of the meeting (Article 153 of the APC).
The judge, and in case of collegial examination of the case - presiding in the court session:
• opens the court session and declares which case is subject to review;
• checks the appearance in the court session of persons participating in the case, their representatives and other participants in the arbitration process, establishes their identity and verifies their powers; ascertain if the persons who did not appear in the hearing are properly notified and what information is available on the reasons for their non-appearance;
• clarifies the issue of the possibility of hearing the case;
• Announces the composition of the arbitration court, informs who is keeping the record of the court session, who participates as an expert, interpreter, and explains to the persons participating in the case their right to make withdrawals;
• explain to the persons involved in the case and other participants in the arbitration process their procedural rights and obligations;
• removes witnesses from the courtroom before the beginning of their interrogation;
• warns an interpreter about criminal liability for knowingly incorrect translation, an expert for giving knowingly false imprisonment, witnesses (just before their interrogation) for giving knowingly false testimonies and refusing to give evidence;
• determines the sequence of procedural actions, taking into account the opinions of the persons participating in the case;
• Finds out whether the claimant supports the claim, whether the defendant's suit admits whether the parties want the case to end by a settlement agreement or apply the mediation procedure, which are recorded in the court record;
• manages the court session, provides the conditions for a comprehensive and full investigation of the evidence and circumstances of the case, ensures the consideration of applications and petitions of persons participating in the case;
• takes measures to ensure the proper order in the court session (Article 153 of the APC).
Participation in the court session using videoconferencing systems.
The persons participating in the case and other participants in the arbitration process may participate in the court session by using videoconferencing systems provided they apply for it and if there is a technical opportunity for the relevant arbitration courts to videoconferencing.
If the application for participation in the court session is satisfied through the use of videoconferencing systems, the arbitration court considering the case instructs the relevant arbitration court, with the assistance of which the applicant will be able to participate in such a court session, the organization of a videoconferencing in order to participate in the hearing, a definition is made in accordance with Art. 73 AIC.
The arbitration court that organizes videoconferencing, checks the turnout and identifies the identity of the persons who appeared, checks their credentials and ascertains the possibility of their participation in the court session in accordance with the rules established by Part 2 of Art. 153 APK.
When videoconferencing systems are used in the arbitration court considering the case, as well as in the arbitration court conducting video conferencing, a protocol is drawn up and a video recording of the court session is conducted. The material carrier of the video recording of the court session shall be sent to the court reviewing the case within five days and attached to the record of the court session.
The arbitration court considering the case, denies the application for participation in the court session by using videoconferencing systems in cases when:
1) there is no technical opportunity to participate in the court session using videoconferencing systems;
2) the case is heard in a closed court session.
Order in the court session. When the judges enter the courtroom, all those present in the courtroom rise (Article 154 of the APK). The decision of the arbitration court all persons in the courtroom are listened to standing.
The persons participating in the case, and other participants in the arbitration process, appeal to the arbitration court with the words: "Dear Court!" Their explanations and testimony to the court, questions to other persons participating in the case, they give answers to the questions standing up. A derogation from this rule can be allowed only with the permission of the court.
The court session is held in conditions that ensure the normal operation of the court and the safety of participants in the arbitration process. The actions of persons present in the courtroom and carrying out the film and photography allowed by the court, video recording, broadcasting of the court session on radio and television should not interfere with the procedure in the court session. These actions can be limited by the court in time.
Persons present in the courtroom are required to observe the established procedure. A person who violates the procedure in the court session or who does not obey the lawful orders of the presiding judge may be removed from the courtroom after the warning and fined.
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