PREPARING THE CASE TO THE COURT OF PROCEEDING
As a result of studying Ch. 13 students must:
• tasks and content of the preparation of the case;
• the commission of the preparatory actions by the judge;
• the appointment of the case to trial;
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.
Tasks, content and timing of preparing the case for trial
The rapid and successful consideration and resolution of the case by the arbitration court largely depends on how well each case is prepared for consideration in the court session. Therefore, the Agrarian and Industrial Complex provides for the duty of judges to conduct such training in cases that are initiated.
In the arbitration process, preparing a case for trial is the second procedural stage that starts after the initiation of proceedings and precedes the trial.
This stage is mandatory in the development of legal proceedings in all civil cases, without exception. Its necessity is predetermined by the fact that when the arbitration process is opened, the judge has information provided only by the applicant, therefore such information can often cover the dispute only one-sidedly. At the same time, free or involuntary distortions are not excluded in the presentation of the circumstances of the case.
The plaintiff, for one reason or another, often deliberately keeps silent about certain legally significant circumstances. In addition, he can legally incorrectly qualify the conflict to be resolved, especially since the legal assessment of the case is not his responsibility.
Therefore, under the current law, the judge is obliged, by initiating legal proceedings, to carry out a number of preparatory actions.
In arbitration proceedings, the preparation of a case for trial is a combination of arbitration procedural actions committed by a judge in order to consider and resolve lawfully and reasonably the case in the first court session with the least expenditure of procedural means and forces of the participants in the trial.>
In this regard, the judge indicates the actions that need to be taken by the parties, other persons involved in the case, and the timing of the execution of these actions to ensure a correct and timely resolution of the case, the possibility to file an application for consideration of the case with the participation of arbitration assessors.
Preparation of the case is extremely important in the system of justice in civil cases. It is designed to ensure the legality, validity, timeliness of consideration and resolution of the case, as well as procedural economy of the arbitration process.
However, the preparatory activities of a judge can not be considered a justice, since it does not include clarification of the circumstances of the case, the application of civil law rules and the establishment of the final status of persons who will participate in the case. These preparatory actions are similar to management ones, as they are not covered by the arbitration procedural form and the law does not establish the sequence of their fulfillment and interdependence.
Preparing a case for trial is always a unity of three activities:
1) intellectual (the judge evaluates the submitted materials, conducts their legal qualification, ponders the prospects for the development of the case, etc.);
2) procedural (fulfillment of preparatory actions provided for by the AIC);
3) office work (makes inquiries, directs summons, etc.) •
The first and last activities are not regulated by the arbitration procedural law.
The objectives of training is to ensure a timely and proper resolution of the case. Therefore, to perform these actions, the judge must solve the following problems:
• determine the nature of the disputed legal relationship and the applicable law;
• establish the subject of evidence in the case, i.e. clarify the circumstances that are important for the proper resolution of the case;
• to conduct legal qualification of the disputed relations of the parties, i.e. determine the legal relationship between the parties and the law that should be followed;
• involve all legally interested persons in the case, i.e. to resolve the issue of the composition of the persons participating in the case;
• Specify by what means of proof the persons participating in the case must justify the demands and objections, i.e. Identify the evidence that each party must submit to confirm its claims.
In addition, one of the main tasks of the judge in the process of preparing the case for the trial is also the reconciliation of the parties.
The content of the preparation of the case is any actions of the judge or court, committed after the initiation of proceedings on the case for the optimal organization of the trial of the case.
Most of the above, the judge performs the specified actions before the beginning of the court session, but they can be carried out even during the trial of the case. For example, a court postpones a hearing to perform preparatory actions, if new means of evidence are obtained, it became necessary to involve someone from the persons involved in the case, etc.
However, the preparation of preparatory actions during the proceedings demonstrates significant shortcomings in the preparation of the case, but such actions are necessary for the legal and reasonable resolution of a particular case.
After acceptance of the application for the trial, the judge makes a determination on the preparation of the case for the trial and indicates the actions to be taken by the persons participating in the case and the terms of their commission (Article 133 of the APC).
The preparation of the case for trial can be specified in the definition of acceptance of the application for production. Preparation of the case for trial is conducted by the judge alone for each case. It must be completed within the timeframe determined by the judge, taking into account the circumstances of the particular case and the need to perform the relevant procedural actions with the conduct of the preliminary hearing (Article 134 of the APC).
Actions of the judge in preparing the case for trial. In accordance with Art. 135 of the AIC in preparing the case for trial judge:
1) summons the parties and (or) their representatives and conducts an interview with them in order to clarify the circumstances relating to the substance of the claims and objections; proposes to disclose the evidence supporting them, and to provide additional evidence, if necessary, within a certain period; clarifies to the parties their rights and obligations, the consequences of committing or not completing procedural actions within a specified time; determines, as agreed with the parties, the deadlines for presenting the necessary evidence and conducting a preliminary hearing;
2) explain to the parties their right to review the case with the participation of arbitrators, the right to refer the dispute to the arbitration court, the right to seek assistance from the mediator, including the mediator, in order to resolve the dispute and the consequences of such actions, takes measures for the parties to a settlement agreement, facilitate the reconciliation of the parties;3) assists the parties in obtaining the necessary evidence, at the request of the parties, at the request of the parties, and in the cases provided by the agrarian and industrial complex, on their own initiative, the necessary evidence, resolves questions about the appointment of an expert examination, summoning experts, witnesses, bringing an interpreter, the need for on-site inspection of written and physical evidence, and also takes other measures to present evidence to the parties; 4) at the request of the parties, resolve issues relating to the enforcement of the claim, provide collateral, and provide evidence, send letters of committal;
5) considers the issues on the entry into the case of other persons, the replacement of the inadequate defendant, the joining and separation of several claims, the acceptance of a counterclaim, the possibility of conducting a court session;
6) performs other actions aimed at ensuring the proper and timely consideration of the case.
Preliminary court session. It completes the stage of preparing the case for trial (Article 136 of the APC). Its purpose is to resolve, with the participation of parties and third parties, organizational and procedural issues, the solution of which at the preparatory stage will allow the future trial to be carried out promptly and with maximum effect.
In a preliminary hearing, the case is dealt with solely by the judge, notifying the parties and other interested persons of the time and place of the event. These persons have the right to participate in the preliminary court session by using videoconferencing systems in accordance with Art. 153.1 AIC. If the duly notified plaintiff and/or the defendant, or other interested persons, who can be brought to participate in the case, fail to appear, the meeting is held in their absence.
The arbitration court in the preliminary court session: permits the parties' motions; determines the sufficiency of the evidence submitted, brings to the attention of the parties, what evidence is available in the case; submits for consideration issues that are resolved during the preparation of the case for trial, and performs other procedural actions provided for by the AIC.
In the preliminary court session, the parties are entitled to present evidence, file petitions, state their arguments on all matters arising in the meeting.
The court, at the request of the persons participating in the case, has the right to declare a break in the preliminary court session for a period of not more than five days to present additional evidence.
After the completion of consideration of all the issues raised in the preliminary hearing, the arbitration court, taking into account the views of the parties and the third parties involved in the case, decides whether the case is ready (or unprepared) for trial.
Appointment of the case for trial. The judge, having recognized the case prepared, makes a determination on the appointment of the case for trial (Article 137 of the APC).
In the determination of the appointment of a case for trial, it is indicated at the end of the preparation of the case for trial and the resolution of questions about bringing to the case: third parties; the adoption of a counterclaim, the combination or separation of several claims, the involvement of arbitrators, as well as the resolution of other issues, if it has not been determined, the time and place of the hearing in the arbitration court of first instance. Copies of the determination of the appointment of the case to the trial shall be sent to the persons participating in the case.
If the persons participating in the case are present in the preliminary court session and they do not object to the continuation of consideration of the case in the court session of the first-instance court, the court completes the preliminary hearing and opens the hearing in the first instance, with APC requires a collegial examination of the case (Part 2, Article 17).
Legal Notices and Challenges
The order of the notice. The persons participating in the case and other participants in the arbitration process are notified by the arbitration court about the time and place of the court session or the conduct of a separate procedural action by sending a copy of the judicial act not later than 15 days before the beginning of the court session or the conduct of procedural action (Article 121 of the APC).
A copy of the judicial act is sent by the arbitration court by registered mail with a notice of delivery or by delivery to the addressee directly at the arbitration court or at the address of the addressee, and in cases not urgent, by sending a telephone message, telegram, fax or electronic mail or using other means of communication.
A proper notice. The persons participating in the case and other participants in the arbitration process are deemed duly notified if by the beginning of the hearing, the arbitral tribunal has information about the receipt by the addressee of a copy of the court act (Article 123 of the APC).
The persons participating in the case and other participants in the arbitration process are also considered to be duly notified by the arbitration court if the addressee refused to receive a copy of the judicial act and this refusal is fixed; in spite of the postal notification, the addressee did not appear for receiving a copy of the judicial act sent by the arbitration court in the established order, which the communications body informed the arbitration court; a copy of the judicial act sent by the arbitration court to the last known court of the location of the organization, the residence of the citizen, was not given due to the absence of the addressee at the specified address, which the communications body was informed by the arbitration court.
Change of address during the proceedings. The persons participating in the case are required to inform the arbitration court about the change of their address during the proceedings. In the absence of such a message, copies of judicial acts are sent to the last known address to the arbitration court and are deemed to have been delivered, at least the addressee at that address no longer lives or lives.
If the person participating in the case does not notify the arbitration court of telephone and fax numbers, e-mail addresses or other similar information, it should inform the arbitration court about their changes during the proceedings (Article 124 of the APC).
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