Art. 198 ГПК the Russian Federation: "the Contents of the decision of court". Comments

Art. 198 of the Code of Civil Procedure of the Russian Federation describes the scheme for 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 the solution

The decision refers to the act of the court, which is accepteddecision on the merits. All other judicial acts are of an interim nature and note the actions of the court in the proceedings and are taken in the form of a determination.

Decisions are made either by the courts of first instance (district or world courts) or by higher courts if they consider it possible after the cancellation to take a new decision or partially change the old one.

The adoption procedure

I must say that Art. 194-198 CCP RF describe in detail the actions of a judge or a panel of judges.

The peculiarity of the solution is that it is adopted inthe advisory room without the presence of anyone other than a judge or judges, if the case was considered by the panel. How does this happen? The judge after the debate reports that he is leaving for the meeting room. It is the office of the judge.

The judge must do the following:

• evaluate evidence;
• find out what circumstances were established;
• the law to be applied in resolving the dispute;
• whether it is possible to fully agree with the requirements of the application;
• it is possible, according to law, to go beyond the requirements of the claim, if the judge sees such a need.

Then the judge leaves the cabinet and announces his decision, if there are no more participants in the trial, copies of the decision are sent to them.

How does the compilation process look like?

The text is presented on paper, usually it is typedon the computer. The law gives the judge the right to state only the introductory part and the resolution, which takes a little time. The reasoning part is set out in the full court decision. The law gives for compiling a few days, but the process takes longer, sometimes almost a month. The reason is the busyness and complexity of the document.

An incomplete decision is issued immediately after itannouncement. Further, the parties are informed when it is possible to collect the full document. Nuance with world judges - they have the right not to make a complete decision, if on this account there will be no statement of at least one of the parties.

Immediately it is necessary to write an application for the issuance of a fulldocument with the reasoning part. He is served in the office, leaving a copy with a note of acceptance. In this case, if the judge drags out with the issuance of a decision, will than argue the passing of deadlines.

How it is drawn up

Everything is done according to the unified standard, according to Art. 198 of the Code of Civil Procedure of the Russian Federation:

• prologue - the name of the court, the case number, the date of the decision;
• the composition of the court (judge, secretary), process participants, surnames and initials;
• a descriptive part (briefly described claims of the plaintiff, an indication of the fact of objections on the part of the defendant);
• motivating part (it is described below);
• Resolute part - partial or complete satisfaction of the claim requirements or refusal in them also full or partial;
• distribution of reasonable expenses of the parties in the trial process;
• indicate the date and procedure for appealing the decision,the world case also includes the time limit in which an application for drafting a complete document must be submitted to the court (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.

At 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 for which 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.

Legality means full compliancelegislation, 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 a 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. Damage acts were drawn up 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 in the decision there was a reference to the norms 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.