Types of evidenceEvidence in the arbitration process is obtained in the manner provided by the APC and other federal laws, information on the facts on the basis of which the arbitral tribunal determines the existence or absence of circumstances justifying the claims and objections of persons participating in the case, as well as other circumstances having importance for the proper consideration of the case (Article 64 of the agrarian and industrial complex).
Under "information", acting as evidence in the case, the legislator implies in this case the objective information that interests the court. After all, if the court will rely on false information, it is unlikely that he will be able to draw the right conclusion on the case.
In the legal literature, as well as the texts of legislation, the concept of "information" not disclosed and not explained. In the Explanatory Dictionary of the United States Language edited by SI Ozhegov and N. Yu. Shvedova (M., 2008) the following definition will be given to this concept: "Mixing up is cognition in some area; news, message & quot ;. The word details synonymous with the word news & quot ;.
Linguistic scientists who conducted a special scientific study concluded that "data" is any text that describes and evaluates events or their individual components. They can be factual and evaluative, true and false, etc. & quot ;. The concept of details It is much broader, more inconclusive than the "fact" and does not reflect, in our opinion, the true situation. Therefore, it is probably more logical to use the term data in the APC (Article 64) and the CCP (Article 55), and not the "actual data" (article 49 of the Civil Code of the RSFSR).
As a rule, any text consists of separate judgments (statements). To establish the truth or falsity of judgments, it is necessary to make verification, i.e. to correlate the content of judgment with reality, after which to verify the truth or falsity of this statement. Only after verifying the judgment and establishing its truth, it becomes a fact. A fact is a real, quite real event, a phenomenon; what happened, happens, or exists.
If as a result of verification it turned out that the content of the statement is true, then such a statement is considered a reliable fact; if the judgment about the event is false, then this is not a fact at all. In other words, the true judgment about an event is a fact, or a factual proposition. An event is what happened. If the statement has not been verified for objective reasons, then there is an unreliable fact or an unverified statement. The purpose of judicial evidence is precisely the activities of the court and the persons participating in the case, aimed at establishing the truth of these facts, on which the resolution of the dispute on the merits depends.The sources of these evidences in the process of proof are persons who observed the facts of interest to the court and therefore possess objective information about them, or things that retained traces of a certain impact or are themselves traces of events of interest to the court, or both.
The court receives the necessary factual data from sources of evidence with the help of special procedural means, called means of proof. That is, the means of proof are the means of obtaining actual data that are confirmed by the procedural law, confirming or refuting the existence of facts that are of interest to the court. These include: written and material evidence; explanations of persons participating in the case; expert opinions; consultations of specialists; testimony of witnesses; audio and video recording; other documents and materials.
As evidence, explanations are provided for persons participating in the case and other participants in the arbitration process, obtained by using videoconferencing systems.
It is not allowed to use evidence obtained in violation of the federal law (Article 64 of the APC).
Written evidence in the arbitration process is the documents containing information on circumstances relevant to the case, i.e. contracts, certificates, certificates, business correspondence, other documents executed in the form of digital, graphic recording or in any other way allowing to establish the authenticity of the document. It can also be minutes of court hearings, minutes of committing separate procedural actions and annexes to them (Article 75 of the APC).
Documents received by facsimile, electronic or other communication, including using the information and telecommunication network of the Internet, as well as signed by an electronic signature or other analogue of a handwritten signature, are allowed as written evidence in cases and in the manner established by the federal law, other regulatory legal acts or the contract or are defined within the limits of the powers of YOU the USA. They must meet all the requirements set for this type of document.
Written evidence submitted to the arbitration court, executed in whole or in part in a foreign language, must be accompanied by their duly certified translations into United States.
A document received in a foreign country is recognized in the arbitration court as a written proof if it is legalized in accordance with the established procedure.
Foreign official documents are recognized in the arbitration court by written evidence without their legalization in cases provided for by an international treaty of the United States.
Written evidence is submitted to the arbitration court in the original or in the form of a duly certified copy. If only part of the document relates to the case in question, a certified extract from it is submitted.
The original documents are submitted to the arbitration court in case the circumstances of the case under the federal law or other normative legal act are subject to confirmation only by such documents, and also at the request of the arbitration court.
The original documents available in the case may be returned to them upon application of the persons who submitted them after the entry into force of the judicial act, which ends the consideration of the case, if they are not transferable to another person. Simultaneously with the applications, the persons submit properly certified copies of documents or petition for a court to certify the copies that remain in the case.
If the arbitral tribunal concludes that the return of original documents will not prejudice the proper consideration of the case, they can be returned in the process of the proceedings in the case pending the entry into force of the judicial act that ends the trial of the case (Article 75 of the APC ).
The material evidence is the items, which by their appearance, properties, location or other characteristics can serve as a means of establishing circumstances relevant to the case (Article 76 of the APC). The arbitration court makes a determination about their involvement in the case.
The concept of material evidence covers a wide variety of subjects that are represented or only named by participants in the legal proceedings in a particular case.
In the arbitration process, three groups of items are distinguished, which can be attributed to physical evidence:
1) the material objects of the claims in question (property for which the claimant claims, the disputed premises, etc.). Evidence of value can have such properties as qualitative characteristics of property, volume, location;
2) poor-quality products, spoiled things that have partially or completely lost their commercial properties, etc. They can testify both to their own consumer value and to the intensity of the inappropriate activity of the defendants or a third person on the defendant's side;
3) counterfeit or forged documents, as well as erroneous acts of official bodies.
Material evidence is stored at the location of their location. They should be described in detail, sealed, and, if necessary, photographed on a photo or videotape. Material evidence can be stored in an arbitration court if the court finds this necessary (Article 77 of the APC).
The material evidence that is in the arbitration court, after examination and investigation by the court, is returned to the persons from whom they were received, if they are not transferable to other persons.
The arbitration court has the right to preserve material evidence before the adoption of the judicial act, which ends the consideration of the case, and return them after the entry into force of the judicial act.
Items that, according to the federal law, can not be owned by individuals, are transferred to the relevant organizations.
The costs of storage of physical evidence are distributed between the parties in accordance with the rules established by Art. 110 AIC: either from the losing side, or in proportion to the size of the satisfied claims.
The arbitration court and the custodian are obliged to take measures to preserve material evidence in an unchanged state.
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