As a result of studying the chapter, the student must:
■ the concept and essence of special production;
■ the specifics of determining the jurisdiction of cases of special proceedings;
■ subjects who have the right to initiate the initiation of cases of special proceedings;
■ specifics of consideration of certain categories of cases of special proceedings;
be able to
■ correctly apply, observe and interpret the rules of civil procedural law governing the procedure for dealing with cases of special proceedings;
■ skills analysis of law enforcement practices in civil cases, considered in special proceedings.
The concept and essence of special production
Subsection IV of the CCP contains the rules regulating the consideration and resolution of cases in the order of special proceedings.
In the legal literature special production is understood as a kind of civil legal proceedings, in order to examine civil cases, which confirm the existence or absence of legal facts on which the origin, change or termination of personal or property rights of citizens or the existence or absence of an undisputed right is confirmed, and the legal status of the citizen is determined (EA Borisova).
In special production, there is no resolution of material and legal disputes, but only establishes and confirms the existence or absence of certain legal facts. As DM Chechot notes, the purpose of a special proceeding is to identify and ascertain certain circumstances with which the rule of law relates the emergence, change or termination of the applicant's certain rights or obligations.
If, during the filing of an application or in the course of the proceedings in the course of a special proceeding, the court will establish the existence of a dispute over the law subordinate to the court, the court, by virtue of Part 3 of Art. 263 The CCP should make a determination on leaving the application without consideration. In this definition, the court shall explain to the applicant and other interested persons their right to resolve the dispute in the course of the proceedings.
The cases of special proceedings are examined and resolved by the courts in accordance with the general rules of the proceedings with the features established in Ch. 27-38 CCP. The absence of a dispute over the right in a special proceeding causes the absence of parties, third parties, characteristic for the proceedings. Therefore, the initiation of proceedings in special proceedings is initiated by the applicant. In special production, the principles of competitiveness and dispositiveness are manifested to a much lesser extent, which is expressed in the impossibility of concluding a settlement agreement, concluding an agreement on transferring the case to the arbitral tribunal, increasing or decreasing the claims, securing the claim, etc.
The current CCP expanded the list of categories of cases considered in special proceedings. In accordance with Art. 262 ГПК by way of special proceeding the court considers affairs:
1) on the establishment of facts of legal significance;
2) about the adoption of the child;
3) on recognizing the citizen as missing or on declaring a citizen dead;4) the limitation of the citizen's legal capacity, the recognition of a citizen as legally incompetent, the restriction of or the deprivation of a minor at the age of 14 to 18 years of the right to independently dispose of his income;
5) on declaring a minor fully capable (emancipation);
6) on the recognition of a movable property ownerless and the recognition of the right of municipal property to an ownerless immovable thing;
7) on the restoration of rights for lost securities to the bearer or order securities (calling production);
8) about forced hospitalization of a citizen in a psychiatric hospital and compulsory psychiatric examination;
9) about making corrections or changes in civil status records;
10) but statements about committed notarial actions or about refusal to commit them;
11) on applications for the restoration of lost judicial proceedings.
This list is not exhaustive, since other laws may be referred to federal laws for consideration in special proceedings. So, for example, cases of special production as an independent category of the case include cases on the recognition of a citizen as capable (paragraph 2 of paragraph 3 of Article 29 of the Civil Code, part 2 of Article 286 of the Civil Procedure Code), as well as cases on recognizing a citizen as having limited legal capacity 1 point 3 of article 29 of the Civil Code).
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