Art. 198 Code of Civil Procedure of the Russian Federation describes a 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 solution
The decision refers to the act of the court that adopted the decision on the merits. All other judicial acts are intermediate in nature and mark the actions of the court in the course of the proceedings and are accepted in the form of a ruling.
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.
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 a panel of judges.
The peculiarity of the decision is that it is taken in the deliberation room without the presence of anyone other than a judge or judges, if the case was considered by a panel. How does this happen? The judge after the debate reports that he is retiring to the deliberation 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 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 more participants in the court, copies of the decision are sent to them.
What does the compilation process look like?
The text is presented on paper, usually it is typed on a computer. The law gives the judge the right to state only the introductory part and the resolution, which takes a little time. The motivation part is set out in a full court decision. The law gives a few days to draw up, but the process takes longer, sometimes almost a month. The reason is the workload and complexity of compiling the document.
An incomplete decision shall be issued immediately after its announcement. Further, the parties are informed when it is possible to pick up the full document. A nuance with justices of the peace - they have the right not to draw up a full decision if at least one of the parties does not make a statement on this matter.
Immediately you need to write a statement on the issuance of a full document with a motivation part. He is served in the office, leaving himself a copy with a mark of acceptance. In this case, if the judge drags on the issuance of the decision, there will be more than justification for missing the deadlines.
How is it made out?
Everything is done according to a single standard, according to Art. 198 Code of Civil Procedure of the Russian Federation:
- introductory part - name of the court, case number, date of the decision;
- composition of the court (judge, secretary), participants in the trial, last names and initials;
- narrative (briefly described the requirements of the plaintiff, an indication of the fact of objections by the defendant);
- motivation part (described below);
- resolutive part - partial or full satisfaction of the claims of the claim or refusal of them also full or partial;
- distribution of reasonable expenses of the parties in the framework of the judicial process;
- the term and the procedure for appealing the decision are indicated, in the case of the world ones, also the time by which the court must submit an application for the preparation of the full document (the last paragraph, despite the clear indication of Article 198 of the Code of Civil Procedure of the Russian Federation, is often not carried out in order to confuse interested parties in the filing procedure complaints that the deadline for sending it was missed).
- surname and initials of the judge, his signature.
On a full decision, the staff of the office puts a stamp. If it has entered into force, in a separate box is the date when this happened.
Motivation part
She is the most important element of any judicial act and consists of:
- circumstances established by the court;
- evidence by which it substantiated them;
- the reasons for rejecting any evidence or arguments of the parties;
- the reasons why the court refused to recognize the circumstances referred to 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 an appeal took place.
In practice, Art. 198 Code of Civil Procedure of the Russian Federation in terms of skipping the limitation period is carried out by refusing to open a case if the plaintiff does not declare its restoration.
The judicial act must be completely legal and well-founded.
Legality means the full implementation of legislation, decisions of the Constitutional Court of the Russian Federation, which should be guided by the courts. Validity means the study of all circumstances that are relevant to the case according to the requirements of the law.
How to find out that a judicial act fully complies with these requirements? What comments on art. 198 Code of Civil Procedure of the Russian Federation? The judge will fully describe the arguments of the parties, substantiate his findings, assessment of evidence. If the decision is unlawful, the arguments of the other party are ignored or distorted, as if they were not. The text seems to lead the reader somewhere to the side. References to the legislation are partial. The court may apply the general rule in the decision, ignoring the acts referred to by the defendant.
For example, an organization blamed citizens for damaging power grids. Damage reports were drawn up with violations by not those officials who were obliged to do so. The court agreed with the claim of the organization. I completely ignored the arguments of the defendants, did not set them out in my 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 rules of the Civil Code, which are of a general nature.
I must say that the comments on Art. 194-198 Code of Civil Procedure of the Russian Federation contain few practical examples, although violation of these articles of the law leads to the complete annulment of the decision.