An absentee decision in the civil process is a frequent phenomenon in modern Russian practice. It causes many complaints not only among citizens, but also among professional lawyers.
Why? We will try to find out.
What is an absentee decision in a civil proceeding
Let's start with the basics.
A court decision in absentia is taken only if the prerequisites are met:
- The applicant does not object to this form of court decision.
- The "Culprit of the Triumph" is not present at the process, although he was warned about the exact time by the appropriate agenda.
- A civil (often property) case. That is, it is impossible to issue such verdicts in criminal, administrative cases.
Most of the misunderstandings and difficulties that arise are associated with subpoenas, or rather, their absence. Many people simply are not at home for various reasons: business trips, moving, studying, illness, rest, some live with friends, the second half, etc. Of course, the obligation of citizens to regularly monitor their correspondence and, if possible, register where they live. But today it’s even allowed to live in another region without registration. The authorities finally realized that we have one country and it is not a confederation, that is, an alliance of several independent lands. However, the problems did not end there. Claims of citizens come at the place of registration, and many citizens learn the court decision from bailiffs when blocking bank accounts and seizing property.
Not so simple
According to the law, an absentee decision in a civil proceeding can be canceled within 7 days from the date of the verdict.
More precisely ten. 3 days are given for manufacturing, and already seven for cancellation. Here lies a legal underestimation of the complexity of the situation. Many citizens, even professional lawyers who do not have the necessary experience, naively assume the apparent ease of cancellation. Apparently, the decision in absentia in the civil process is put on a par with
court orders. Recent definitions are relatively easy to reverse. To do this, it is enough to write the appropriate objection without explaining the reasons, and that’s all, the result - the court order is “swept away”.
An absentee decision of a justice of the peace is another document that is not so easy to reverse. We’ll talk about this in more detail.
Grounds for cancellation
The Code of Civil Procedure, although it provides for the abolition of this form of verdict, however, two things must be indicated:
- The validity of the reasons for the non-appearance of the defendant in court.
- Evidence and circumstances in which the original verdict should be set aside.
That is, the fact of disagreement itself does not give the right to annul the decision, in contrast to the same court order.
This is due to the fact that judges thoroughly consider all materials. They may even make a request if necessary. The ministers of Themis will not re-see the same documents without other circumstances, but simply refuse.
Logic is actually present. Court orders are stamped like on a conveyor belt on the basis of documents absolutely proven from the point of view of law: contracts, acts of acceptance, receipts, etc.
An absentee decision in the case assumes that the court took into account all the possible nuances of the case, perhaps, as mentioned above, requested additional documents, made settlements, considered payments for property disputes, etc. Therefore, the verdict is canceled only when the defendant submits other documents that prove innocence or can change the case in his favor (reducing the loan amount, mutual claims, etc.).
Where to appeal
An absentee decision of a justice of the peace can be appealed to a district court. District - in the appeal court of regional courts.
The legal force of an absentee decision: myth and reality
There is a myth that if you do not "see" the court verdicts and do not take them yourself, then they will not enter into legal force.
What is it based on? On the incorrect interpretation of the norms of the civil procedure code. It says that absentee decisions come into force from the moment 30 days after the court refuses to cancel it or after the expiration of the procedural terms for such an action. But it can be canceled within seven days after receiving the decision on hand, that is, if you do not “see” the court letters and do not appear in person for the civil “sentence,” then it will never enter into legal force.
This myth is broken about the steadfastness of the bailiffs who arrest all cash accounts from bank cards and property of the debtor.
If the defendant did not appear in the civil procedure and, accordingly, did not submit an application for cancellation within seven days, then the verdict will enter into legal force on the 38th day after the hearing.
Skipping deadlines
Skipping deadlines for filing is a common occurrence when considering such cases. This is due to the fact that seven days is a very short time. Even for those citizens who live in their apartment and received the summons on time. They could be on a business trip, on vacation, in hospital treatment, temporarily move in connection with the repair, etc. As a result, the deadline for canceling the verdict is missed. To cancel it, it is necessary to simultaneously write a petition for the restoration of the missed procedural term at the same time as filing for this procedural action . There are also reasons for this.
Who is being restored?
Delivery deadlines are restored for the following reasons:
- Business trip, employment in another city.
- Disease or quarantine prophylaxis.
- Illiteracy - this refers to the elementary inability to write and read, and not legal ignorance of the laws, as many interpret it.
- Another reason that the court found satisfactory.
Most often, it means ignorance about the court session. No need to prove ignorance. If the court does not have a mark in the signature of the defendant on the mail spine, then it restores the deadline for submission.
The position of the Supreme Court of the Russian Federation on the restoration of the deadlines for filing an application for the cancellation of an absentee decision
If a citizen missed the deadlines for cancellation, then he can restore the deadlines, having one of the above reasons. However, you need to consider the time that has passed since the decision was made. If the absentee verdict has not yet entered into force, that is, the deadline for appeal has not passed, then the courts can restore the deadline for cancellation at the request of the defendant. However, if 38 days have already passed, then it can no longer be extended. But you can restore the deadline for filing an appeal. In 2015, the Supreme Court of the Russian Federation indicated this in the Review of Practice, giving rise to conflicting opinions about the judicial system among specialists.
The logic, of course, is understandable: it is necessary to slightly relieve the courts of first instance and reduce the cancellation of enforcement proceedings. However, good intentions should not give rise to precedents of "parallelism", selectivity and narrow-mindedness. Many lawyers ask the question: why is it possible to restore the time limit for filing an appeal, but there is no time to cancel the court decisions ?
However, it is worth noting that the correspondence decision is identical in nature to the usual one. And you can’t cancel it, even if less than 38 days have passed to appeal. The defendant may also suspect nothing and skip court hearings. In this case, the decision cannot be reversed under any circumstances. Remember: forewarned means armed.