Specificity of consideration of certain categories...

Specificity of considering specific categories of cases of special proceedings

Cases for establishing facts of legal significance. Such cases represent the most common group of cases of special proceedings. As noted by MA Vikut, the significance of legal facts is that on their basis, various bodies and officials draw conclusions about the emergence, change or termination of the subjective rights of citizens and organizations.

In Art. 264 CCP contains an open list of cases on the establishment of facts of legal significance that are subordinate to the court. In accordance with legislative instructions, the court reviews cases on the establishment of:

- the fact of family relations;

- the fact of being dependent;

- the fact of birth registration, adoption, marriage, divorce, death;

- the fact of recognition of paternity;

- the fact of ownership of title documents (with the exception of military documents, passports and certificates issued by the registrar's offices) to the person whose first name, middle name or surname indicated in the document do not coincide with the name, patronymic or surname of that person, indicated in the passport or certificate about birth;

- the fact of owning and using real estate;

- the fact of an accident;

- the fact of death at a certain time and in certain circumstances in the event of the failure of the registry office to register death;

- the fact of acceptance of the inheritance and the place of opening the inheritance;

- other facts of legal significance.

Thus, the Plenum of the Supreme Court of the USA in paragraph 5 of Resolution No. 9 of October 25, 1996 pointed out that since the UK does not exclude the possibility of establishing the origin of the child from a person who is not married to his mother, in the event of the death of that person, the court the right to establish the fact of paternity in the manner of special production. Such a fact can be established for children born on March 1, 1996 and later, with evidence, with a reliable confirmation of the origin of the child from this person (Article 49 of the Criminal Code), and for children born in the period from October 1, 1968 until March 1, 1996, - in the presence of evidence, confirming at least one of the circumstances listed in Art. 48 of the Code of Marriage and Family of the RSFSR (now out of force).

In accordance with Art. 7 of Federal Law No. 1761-1 of 18.10.1991 "On the Rehabilitation of Victims of Political Repression" in the absence of documentary evidence on the basis of testimony in court, the fact of applying repression to a citizen may be established.

In the opinion of EA Borisova, according to the procedure of special production, the following facts having legal significance can be established: the fact of possession of a pile, car, other property subject to registration in the event of the death of one of the spouses in whose name this property was registered; the fact of erecting a building on the funds of one of the spouses in the case of a non-struck, but long-broken marriage, when this circumstance prevents the sale of the house.

According to paragraph 3 of Art. 1129 Civil Code at the request of the person concerned, the court can confirm the fact of the will in emergency circumstances.

By virtue of Art. 264-265 CCP courts can accept applications for the establishment of facts and consider them in special proceedings: if according to the law such facts give rise to legal consequences for the applicant (the emergence, change or termination of personal or property rights of citizens or organizations); the establishment of the fact is not connected with the subsequent resolution of the dispute about the law subordinate to the court; the applicant does not have another opportunity to obtain in other order the proper documents certifying these facts, or to restore lost documents; the current legislation does not provide for a different (extrajudicial) procedure for their establishment.

In a statement on the establishment of a fact having legal significance, in addition to the usual details specified in Art. 131 ГПК, it is mandatory to indicate for which particular purpose the applicant needs to establish this fact, as well as evidence that confirms that the applicant can not obtain proper documents or can not recover lost documents with the relevant written evidence.

Based on the results of the examination of the application for establishing a fact of legal significance, the court makes a decision that meets the requirements of Art. 198 GPC.

The court decision that entered into legal force on establishing a fact having legal significance becomes mandatory for the bodies registering such facts or issuing the rights arising in connection with the fact established by the court. When establishing the fact of registration of a civil status act in a judicial procedure, the registrar's office registers the act on the basis of a court decision.

It should be borne in mind that a court decision to establish a fact to be registered with the registry office or other bodies does not replace the documents issued by these bodies, but serves as justification for their receipt.

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