A special proceeding in the Civil Procedure Code is a type of civil proceedings, along with a lawsuit and an order. It is designed to solve a list of specific tasks related to the protection of the rights and interests of citizens and organizations.
Form of legal proceedings
Art. 262 Code of Civil Procedure of the Russian Federation does not contain the concept of special proceedings, only its purpose is indicated - to identify facts or circumstances that affect the occurrence, change or termination of civil rights and obligations of citizens and organizations.
Another goal is to establish the legal status of a person or property.
In particular, cases of limitation of legal capacity or recognition of a person as legally incompetent are referred to cases of special proceedings. The cancellation of decisions on special proceedings is considered on the basis of a new application, where provided. In other cases, the rules for reopening cases due to newly discovered circumstances apply.
Art. 262 Code of Civil Procedure of the Russian Federation contains a list of cases attributable by law to special proceedings. It may be supplemented by other federal laws.
General features of special proceedings
The participants in the process are represented by two parties:
- the applicant;
- interested party.
The applicant is an analogue of the plaintiff, a person who needs recognition of a fact.
An interested person is an organization, body or notary who does not have reliable evidence of a legal fact.
The involvement of the court in resolving difficulties arises for two reasons:
- direct indication of the law;
- the impossibility of otherwise confirming or refuting the facts of interest to the applicant and other persons.
Strict regulation (cases of adoption) and the provision of broad freedom (for example, establishing the fact of residence in the Crimea at the time of March 18, 2014) are characteristic of a special production in the CCP at the same time, depending on what kind of case is being discussed.
The application is sent to the court at the place of residence of the person or location of the organization. In cases of establishing the fact of ownership of real estate, an application is filed at the location of the object.
A state fee of 300 rubles is paid. Cases are examined by district courts, magistrates do not deal with this category.
Fact finding
Art. 264 Code of Civil Procedure contains a list of cases in which a fact-finding is considered. The procedure applies to an unlimited number of cases.
For example, it is not uncommon - statements asking to establish a relationship. The need arises from the destruction of documents at a time when, for example, they ask to establish a family relationship with the deceased person in order to accept the inheritance after him. Documents confirming their relationship were not preserved either in the registry office or in other organizations.
The peculiarity of the court’s activity is that, unlike other public authorities or a notary public, it is not obliged to act solely on the basis of indisputable evidence. He has the right to fill a gap in the evidence chain with evidence, information that is indirectly related to the case.
The receipt of a document is ensured by filing an application and a specific set of papers. If they cannot be collected, then it remains to go to court.
A special proceeding in the Code of Civil Procedure provides for the obligation to prove attempts to collect information before going to court. These are answers from archives, authorities confirming that they cannot help. Without evidence of a preliminary appeal to the competent authorities, the application is not accepted by the court.
The applicant must explain the reasons for going to court, for which he needs a court decision.
The role of the court is to relate the available facts so that the applicants can exercise their rights. However, the court does not replace the competent authorities.
Adoption procedure
Adoption or adoption is carried out exclusively in court, guardianship authorities here are one of the parties to the process, taking an active position.
If the application is submitted by foreigners or citizens living abroad, the case is considered by a court of regional or republican level, cities of federal significance.
The statement indicates:
- Name of potential parent or parents;
- Name of the child;
- circumstances of his adoption;
- a request to change the child’s full name, date of birth, if the child is under 12 months old;
- a request to record the adoptive parent (s) as a parent or parents in the birth certificate.
Adoption or adoption of a child requires confirmation of a number of circumstances:
- health status;
- consent of the second spouse or proof of separation for at least 12 months;
- availability of official income;
- the availability of housing on the basis of ownership or use (lease, on the right of a member of the owner’s family, etc.);
- documents confirming the passage of training as a potential adoptive parent;
- the conclusion of the guardianship authorities on the adoption of the child by the applicants.
Relatives, stepfather or stepmother, should not be pre-trained and registered as a candidate.
Cases of special proceedings in this category are considered quite carefully, and before they go to court, serious preparation is carried out.
Adoption due to neglect of parental debt is canceled in a lawsuit.
Declared dead or missing
An application for recognition of a citizen as missing is filed in order to achieve the end of the marriage or receive a pension for the loss of the breadwinner. The minimum waiting period is 1 year.
If the court recognizes the fact of death, then the inheritance is opened, and the transfer of rights to property is ensured. Marriage also ends and the right to retirement arises. The prosecutor is involved in the process to give an opinion to the court.
The unknown absence is confirmed by certificates from the police department about the failure of the search for the missing person, testimony of witnesses.
Decease is allowed in the absence of a period of not less than 5 years. If there was a threat to life, then - 6 months. Disappearance during hostilities gives the right to recognize as dead no earlier than 2 years after the end of hostilities.
Cases of special proceedings for recognition of the deceased are considered reluctantly by the courts, it is much easier to achieve recognition as missing. If a person is declared, then the decision is canceled.
Restriction or Disqualification Statements
Reaching the age of 14 gives the child a certain freedom in making transactions, earning income and disposing of it, and the liability for causing property damage is expanding.
Nowadays, among children, unfortunately, there is an abuse of alcohol and drugs. Such circumstances give parents or guardians the right to go to court to limit their own spending.
An application for restricting a citizen's legal capacity may be filed on the basis of establishing the fact of dependence on drugs or alcohol, which leads to a distress for the family. A person has the right to make small purchases, but income is controlled by a guardian, in particular by his wife or parents or other persons.
If a person is mentally ill to such an extent that due to his condition he cannot control his actions and be aware of his actions, it is allowed to ask the court to deprive a person of his legal capacity.
Part of the application review process is a psychiatric examination. Its results determine the decision of the court, unless it comes out to challenge it, which is extremely difficult. Courts rarely, when there is a clear discrepancy between the findings of the examination and the materials of the case, and if there is an internal contradiction, agree to a new examination.
The application in all these cases is filed either by the guardianship authorities, or by relatives, or by a psychiatric hospital, if the citizen is in a psychiatric hospital.
A special proceeding in a civil proceeding gives the right to a person deprived or limited in legal capacity to send an application to the court to annul the previous decision. Adequate reasons: lifestyle change and recovery.
Mandatory participants are the prosecutor and guardianship authorities. The court decision is sent to the guardianship authorities, which appoint a guardian. Cancellation of the decision automatically leads to the abolition of guardianship.
In cases on the issue of legal capacity, it is especially evident how the rules of the Code of Civil Procedure on special proceedings are closely intertwined with the provisions of other laws.
Emancipation Statements
A child who has reached the age of 16 is entitled to ask the court to emancipate him, that is, to declare him fully capable. What is the reason for this? Jobs, the desire to open their own business.
In addition to additional freedom, the applicant receives responsibility for all of his civil obligations (transactions, harm). He no longer needs the consent of his guardians or parents. All property liability falls entirely on him.
A judge’s refusal to emancipate can be appealed or the reasons for the refusal referred to by the judge can be eliminated, and then again appeal to the court.
Mandatory submission of the conclusion of the guardianship authorities and prosecutors.
Application for recognition of an ownerless thing
The application is submitted by the municipal administration, which revealed the property, the right of ownership, for which no one was registered or the owner refused it.
The law requires 12 months before the application is filed with the court to register the property as ownerless property.
The impossibility of identifying the owner is proved: answers from the archives, statement of the owner about the rejection of the property. An extract from Rosreestr about the absence of a registered right of ownership is provided.
An application for recognition of a movable as ownerless shall be submitted in the same way as an application for an immovable object.
The judge is obliged to find out who may be related to the property (potential heirs, owners, etc.).
It is forbidden to recognize the ownerless property of persons missing or declared dead.
Restoration of rights to securities
A special proceeding in a civil procedure gives the right to request the restoration of rights to registered or order securities. Special proceedings in a civil proceeding apply to securities that cannot be used because of their corruption or destruction.
Claiming them from a third party that has taken possession of them is ensured by filing a lawsuit.
The applicant is obliged to prove that the credit institution refuses to carry out operations on these securities. The refusal should refer specifically to a violation of the form of the security, and not to the absence of the right of the applicant in general.
Based on the decision, the old document is canceled and a new one is issued.
The applicant must publish in the media information about the process, data on the security.
Within 2 months, a credit institution is prohibited from conducting operations on the declared security.
The appearance of the owner who has claimed his rights obliges the court to terminate the special proceedings.
Illegal possession is disputed in a lawsuit.
Forced hospitalization
The Law on Psychiatric Care gives the right to place a person in a hospital without his consent. Reasons - a mental state in which he is a danger to himself and to others.
The statement of the medical organization is based on the commission report of the hospital’s doctors and extracts from the medical record and other materials confirming the stated facts.
The application is submitted no later than 48 hours after sending to the hospital. If he was not filed, the person should be released.
When applying, the judge extends his stay in the hospital until the end of the consideration of the case, which cannot last more than 5 days.
An application for the extension of the period of stay in the hospital and the examination of a citizen is provided.
The judge has the right to resolve the case while in his office or visiting the hospital in order to evaluate not only the papers, but also the patient himself, if that cannot be brought to court. In the case, the conclusion of the prosecutor is necessarily given.
Incorrect civil registry
Under acts of civil status provides for the elimination of errors in an administrative order.
A preliminary application is submitted to the registry office in order to correct a mistake or make a change in the record.
Having been refused, the applicant has the right to apply to the court. The validity of the statement, the actions of officials is checked. The judge may refuse the application for two reasons:
- there are no grounds;
- There is a dispute between the applicant and the authority.
If the court takes the side of the applicant, the decision is executed by making entries in the assembly books and issuing new certificates.
Appeal against notarial acts
Applicants are persons whose interests have been affected by notarial acts. The prosecutor also has the right to apply for the protection of others' interests if the person cannot, for good reason, protect his rights.
A prerequisite for consideration is the absence of a dispute about the right (for example, inheritance, the right to real estate).
The complaint is limited to 10 days from the day it became known about the violation. As a rule, this is the day of receipt of the relevant document.
In addition to notarial documents, papers are provided confirming, according to the applicant, his innocence.
Without restoration of the missed period, a complaint to a notary shall not be accepted. This is the only exception, because cases considered by the court in a special proceeding are not tied to time limits.
Reinstatement of court proceedings
Loss of documents in government is not uncommon, and the court is no exception in this area.
If there is a need to obtain documents from a court case, this is not only a decision, then an application for the restoration of proceedings is submitted. It does not matter whether the final decision is made in the case or whether it was discontinued.
The statement shall indicate:
- case number;
- parties;
- circumstances of the case;
- other information.
The preserved documents, copies of procedural documents are attached.
The applicant must inform the reason for the restoration of production materials.
The court’s refusal to restore the proceedings opens the way to a new lawsuit by the same plaintiff, to the same defendant on the same grounds and reason. With a court decision, this is prohibited.
Art. 262 Code of Civil Procedure of the Russian Federation with comments, unfortunately, does not contain all possible options and nuances of special proceedings. Therefore, it is advisable to turn to a specialist with practical experience in the category of cases of interest.