The concept of judicial evidence and their classification - Civil Procedure Law

The concept of judicial evidence and their classification

Legally significant facts of a legal conflict are established with the help of evidence under which Art. 55 CIC understands the information received in accordance with the law information on facts giving the court the opportunity to establish the presence or absence of circumstances justifying the claims and objections of the parties, as well as other circumstances relevant for the correct consideration and resolution of the case. This information can be obtained from the explanations of the parties and third parties, testimony of witnesses, written and material evidence, audio and video recordings, expert opinions.

Evidence obtained in violation of the law, do not have legal force, so they can not be used as a basis for judicial decision, which directly prohibits Part 2 of Art. 50 of the Constitution and part 2 of Art. 55 CIC. At the same time, it is necessary to bear in mind the ruling of the Plenum of the Supreme Court of the United States of October 31, 1995 No. 8, paragraph 16 of which states that in the administration of justice it is not allowed to use evidence acquired in violation of the federal law. If this is the case, the decision on the case is subject to cancellation, for example, if the court without the participation and notifications of the parties collects and sends additional documents to the expert to carry out an expert examination (see the US Supreme Court of Justice judgment No. 39-KG12-3 of February 26, 2013) or motivates his conclusions with the help of video recording without specifying data about when, by whom and in what conditions it was carried out (see the definition of the St. Petersburg City Court of April 18, 2012 No. 33-5512).

In the CPC, the concept of evidence is defined through the "facts", which was the result of a lengthy discussion in the science of civil procedural law regarding how to interpret the evidence. A number of authors believed that the evidence is nothing more than facts obtained from sources provided for by law and in the manner prescribed by law that are with the required circumstances in a strictly defined connection (S. V. Kurylev). According to other jurists, evidence in the civil process is a means of obtaining a true knowledge of facts relevant to the case by the court (FN Fatkullin).

Identifying evidence and facts is hardly possible, since the latter, as a rule, take place in a different time period, not comparable with the trial, except for continuing legal relations. Consequently, to collect and present to the court the facts of the persons participating in the case, can not, for understandable reasons. In addition, we are in agreement with GL Osokina that it is impossible to identify the "fact" as a phenomenon or event of real reality and "knowledge" about this fact. Since a reliable and accurate knowledge of the objects and phenomena of objective reality is always adequate, i.e. corresponds to real objects and phenomena, but sometimes there is a substitution of concepts, as a result of which, using reliable knowledge of the facts of the objective world, it seems to us that we operate with the facts of this reality.

In connection with the above, the reasoned censure caused art. 49 GIC RSFSR in 1964, containing the thesis of evidence as any factual data, which equated evidence and facts. The analysis of evidence only with the help of means of proof significantly impoverishes the notion of the former, for attention is concentrated only on their form. In addition, the court can take the facts personally and directly, if they exist at the time of the case, for example by an on-site inspection.

The most reasonable point of view seems to be that evidence is a complex legal design, indicating the unity and interrelation of the content and form of judicial evidence. Evidence is information about the facts, but not the facts themselves, because the court on specific cases operates not so much by the circumstances themselves, but as information about them. At the same time, concrete means of proving serve as a source of information, its carrier: explanations of the parties and third parties, testimony of witnesses, written and material evidence, audio and video recordings, and expert opinions. That is why recently in the procedural theory in the definition of the concept of judicial evidence are widely used in the equatorial terms information and information (V.V. Molchanov).

Classification of judicial evidence is carried out for various reasons. By the nature of the connection with the circumstances sought, the evidence is divided into direct and indirect. Direct evidence directly correlated with the facts of civil cases, refuting or confirming them. For example, in preparation for the trial of a case on the recognition of a citizen incompetent, the court appoints a forensic psychiatric examination. In this case, the direct evidence of the presence of a person's mental disorder is the corresponding expert opinion. Indirect evidence, on the contrary, do not directly point to a particular fact, but their presence allows the court to build a chain of logical conclusions about the required circumstance. These conclusions are likely in many respects, therefore, the judicial body needs a set of indirect evidence that does not contradict each other, and a decision based only on circumstantial evidence may be canceled on grounds of unreasonableness.

By the method of forming the means of proof are divided into the original and the derivative. Initial evidence is sometimes also referred to as primary source. This is due to the fact that they appear due to the impact of the sought-for fact on the material carrier of information, for example, the original document. The mechanism for the formation of derivative evidence suggests signs of secondary and interchangeability of those. In particular, the witness has the right to give testimony from the words of a direct eyewitness of events, so it can be painlessly replaced with another similar witness. It is understandable that the level of confidence in the derived evidence is lower than that of the derivatives, which is why the Romans claimed that one eyewitness is worth more than ten heard (testis oculatus unus plus valet, quam auriti decem).

The source of formation determines the existence of personal and substantive (material) evidence. Personal evidence are associated with the explanations of the parties, third parties, as well as with the testimony of witnesses, i.e. come from a specific person, who took an important fact, saved it and recreated it. In doing so, one should keep in mind the subjective factor relating to the psychic characteristics of a person, namely, how much he is immersed in the experience in the reproduction of the event, what is the specificity of his thinking, mental inclinations, correlation with the world, and the like.

Objective evidence the subjective factor does not accompany. Information carriers here are any materialized objects of the material world objectively capable of preserving and displaying the "image-image" the event occurred. Therefore, according to Art. 73 ГПК substantive evidence are objects that by appearance, properties, location or other characteristics can serve as a means of establishing circumstances that are of legal importance for proper consideration and resolution of civil cases.

Some authors further distinguish mixed evidence. They are extracted by the court from two sources of formation, namely personal and material. If the latter are formed entirely or in the main part before the trial and outside the procedural form, the mixed ones are formed in court and depending on its discretionary will. In this connection, in most cases, the expert's opinion is analyzed in the literature, which contains the expert's answers on the facts, on the one hand, and on the other hand, the subjects investigated by the expert serve as the source of these facts. S. V. Kurylev, describing the expert's conclusion as a mixed proof, wrote that the main difference is that the expert not only perceives certain phenomena, but also evaluates them from the point of view of his scientific knowledge of the relations of phenomena, cognizing as a result of such an evaluation & quot ; new facts not directly in the phenomena studied and evaluated by them; the independent nature of the mixed evidence has led to the fact that the practice with respect to these evidences has developed special rules, non-observance of which makes this evidence vicious.

In addition to the above-mentioned classification groups, necessary proofs are isolated. The matter is that for every legal conflict there are such proofs, without which it is not possible to pass the judicial law of the application. The court's activities are so determined by this evidence that the justice body in any case must receive them from the participants in civil proceedings. The necessary evidence in each case is determined by the court, relying on the norms of substantive law. So, during the consideration of a dispute on the invalidation of a car sale and purchase agreement, at least the following documents are necessary to the court: documents confirming the conclusion of a car purchase agreement, a copy of the technical passport, a copy of the vehicle registration certificate, documentation of the item's value, if it can not be returned in kind.

Sometimes necessary proofs are outlined in the procedural legal regulations. In particular, Art. 271 ГПК emphasizes that a copy of the birth certificate of the adopter must be attached to the application for adoption (with the adoption of the child by the unmarried person), a copy of the marriage certificate of the adopters (with the adoption of the child by the married persons), a medical opinion on the condition health of adoptive parents, a certificate from the place of work on the position held and wages or a copy of the income declaration, a document on the passage in the prescribed manner of preparation of persons wishing to take care of their children in the family, (except for cases when an application for the adoption of the child by the stepfather or stepmother, close relatives of the child, persons who are or were adoptive parents and in respect of which the adoption was not abolished) and other documents are submitted.

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