Art. 198 Code of Civil Procedure of the Russian Federation describes the scheme of drawing up a court decision in a civil case. It should be noted that this article is closely related to other provisions describing the process of its adoption.
Concept of solution
The decision refers to the act of the court, which adopteddecision on the merits. All other judicial acts are intermediate in nature and note the actions of the court during the proceedings and are made in the form of a definition.
Decisions are made either by the courts of first instance (district or magistrates' courts), or by higher courts, if they consider it possible to cancel a new decision after cancellation, or partially change the old one.
Adoption procedure
I must say that art. 194-198 Code of Civil Procedure of the Russian Federation describe in detail the actions of a judge or panel of judges.
The particularity of the decision is that it is made inconsultative room without the presence of anyone other than the judge or judges, if the case was considered by the board. How does this happen? The judge after the debate reports that he is retiring to the deliberation room. It is the judge's office.
The judge should do the following:
- evaluate evidence;
- find out what circumstances were established;
- the law to be applied in the resolution of a dispute;
- is it possible to fully agree with the requirements of the application;
- is it possible, according to the law, to go beyond the requirements of the claim if the judge sees such a need.
Then the judge leaves the office and announces his decision, if there are no longer any participants in the trial, copies of the decision are sent to them.
What is the process of drawing up
Текст излагается на бумаге, обычно его набирают on the computer. The law gives the judge the right to present only the introductory and the operative part, which takes a little time. The motivational part is set out in a complete court decision. The law provides for drawing up a few days, but the process takes longer, sometimes almost a month. The reason is the workload and complexity of the document.
An incomplete solution is issued immediately after it.announcements. Further, the parties are informed when it is possible to collect the complete document. Nuance with the magistrates - they have the right not to make a complete decision, if there is no statement to this effect from at least one of the parties.
Сразу же надо писать заявление о выдаче полного document with motivation part. It is served in the office, leaving a copy with a mark of acceptance. In this case, if the judge delays with the issuance of the decision, there will be something to argue for missing the deadlines.
How to make it
Everything is done according to a single standard, according to Art. 198 Code of Civil Procedure of the Russian Federation:
- introduction - the name of the court, the number of the case, the date of the decision;
- composition of the court (judge, secretary), participants in the process, names and initials;
- the narrative (briefly described requirements of the claimant, an indication of the fact of objections by the defendant);
- motivation part (described below);
- the operative part - partial or full satisfaction of the claim requirements or the refusal of them also full or partial;
- distribution of reasonable expenses of the parties in the framework of the judicial process;
- indicate the date and procedure for appealing the decision,the world case also includes the time limit in which the application must be submitted to the court for drawing up a complete document (the last paragraph, despite the clear indication of Article 198 of the RF Code of Civil Procedure Code, is often not fulfilled in order to confuse the interested parties in the procedure for filing a complaint so that sending).
- the name and initials of the judge, his signature.
The full decision of the office staff put a seal. If it came into force, the date when it happened is entered in a separate frame.
Motivational part
It is the most important element of any judicial act and consists of:
- the circumstances that the court established;
- the evidence by which it substantiated them;
- the reasons for which rejected any evidence or arguments of the parties;
- the reasons why the court refused to recognize the circumstances relied on by one or both parties or other participants in the process;
- the reasons why the court decided not to restore the limitation period, if such appeal took place.
In practice, art. 198 Code of Civil Procedure of the Russian Federation in part of the passage of the limitation period is performed by refusing to open a case, if the plaintiff does not declare his recovery.
The judicial act must be completely lawful and justified.
Законность означает полное исполнение норм legislation, decisions of the Constitutional Court of the Russian Federation, which should guide the courts. Validity means the investigation of all circumstances that are relevant to the case as required by law.
How to find out that the judicial act is completelymeets these requirements? What say about this comment to Art. 198 Code of Civil Procedure of the Russian Federation? The judge will fully describe the arguments of the parties, justify their findings, evaluation of evidence. If the decision is illegal, the arguments of the second party are ignored or distorted, as if they were not there. The text as if takes the reader somewhere to the side. References to partial legislation. The court may apply a general rule in the judgment, ignoring the acts to which the defendant referred.
For example, the organization accused citizens ofdamage to the power grid. Acts of damage are issued with violations not by those officials who were obliged to do so. The court agreed with the claim of the organization. The arguments of the defendants were completely ignored, did not state them in their decision, in particular, with regard to violations in the preparation of acts. Of all the acts of legislation, the decision referred to the provisions of the Civil Code, which are of a general nature.
I must say that the comments to Art. 194-198 Code of Civil Procedure of the Russian Federation contain few practical examples, although the violation of these articles of the law leads to a complete reversal of the decision.
