The ratio of the trial and the hearing - Civil Procedure Law

Value of the trial and court session

The question of the correlation between the trial and the court session, in spite of the seeming simplicity, is actually quite complex and multifaceted. After some discussions in the literature, they came to a fair opinion that the corresponding stage of judicial development in the court of first instance or the stage of civil proceedings can not be called a judicial hearing, since the last legal phenomenon is not identical to the trial (E. N. Kovaleva).

Indeed, within the framework of the trial, the court of first instance fulfills its primary responsibility - properly administering justice in a particular civil case. However, this activity can not exist outside the procedural form, which gave the right to declare: the court session is only a form of legal proceedings (Π. P. Gureev). Thus, civil cases are reviewed and resolved by the court until the expiration of two months from the date of receipt of the application, unless the other terms for the consideration and resolution of cases are established by the procedural law, and the justice of the peace - before the expiry of the month from the day the application is accepted for execution, for which the justice body may not appoint one, and several court hearings.

At the same time, one should not oppose content and form, since they are in dialectical unity, or underestimate the procedural form of the trial, which in turn is a form of civil justice (AF Kleinman). In the court session, it is impossible to see an onerous formality, on the contrary, it serves as a guarantee of comprehensive and complete clarification of the circumstances of the legal conflict, it makes it possible to establish the uniformity of procedural activity (KI Komissarov). Here, all basic civil procedural principles are most clearly manifested.

It should be borne in mind that according to the current civil procedural law the court session is conducted only in the framework of the trial and only in some cases when preparing the case for trial (Article 152 of the CPC), in order to get out of this difficult situation, courts are compelled to use the non-process wording, inviting the persons participating in the case to the "conversation". This problem requires an independent legislative settlement.

However, since the early 90's. XX century. in connection with a significant change in the regulation of material and legal relations in civil proceedings, there has been a tendency to improve the principle of procedural economy, which allows simplifying cumbersome procedural rules in the resolution of certain categories of cases. For example, a court order is issued without trial and summoning the parties to hear their explanations (Part 2, Article 126 of the CCP). The application for securing the claim is considered on the day of its receipt in court without notification of the respondent and other persons participating in the case (Article 141 of the CCP). Partial complaint about leaving the application for award of compensation for violation of the right to legal proceedings or the right to execute the court decision within a reasonable time without movement, is also analyzed without notification of the parties, as a consequence, there is no need for a hearing (Part 5, Article 244.5 of the CCP).

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