Art. 61 Code of Civil Procedure of Ukraine establishes grounds excluding the obligation of proof in the case. They apply to a limited list of facts or circumstances. Despite a fairly clear wording, the provisions of the article raise questions.
Provisions of Evidence
General provisions of the procedural law impose on participants in the process the obligation to substantiate their allegations. In some cases, the burden of providing evidence may be shared differently. For example, in cases of harm, the plaintiff is obliged to prove the fact of harm, and the defendant - the fact of lack of guilt. Indications of this are contained directly in the text of the law.
In practice, one should not confine oneself to just proving one’s own position, if it is possible to refute the arguments of the second side, it is necessary to use it.
Art. 61 Code of Civil Procedure helps to avoid serious misunderstandings in judicial practice.
Withdrawal of evidence
Art. 61 Code of Civil Procedure includes a list of criteria giving the right to consider this or that fact proven:
- facts or circumstances considered generally known;
- facts or circumstances that were previously established by judicial acts in respect of the same persons;
- facts or circumstances established by the arbitral tribunal in a case with the same participants;
- circumstances established by the sentence regarding the existence of actions of a particular person;
- facts established by a notary, if the authenticity of the document or the observance by the notary of the procedure for performing a notarial act is not disproved
Legislative changes
No changes to this article since the adoption of the code until 2014. The only revision concerned the introduction of an additional provision on the significance of notarial documents. What was, in general, a logical development of the legislation on notaries, since documents certified by a notary and accepted by authorities are not checked, for example, agreements.
Due to this, Art. 61 Code of Civil Procedure of the Russian Federation in the new edition looks more logical.
What does it mean - no need to prove or disprove?
Proof means the presentation of documents or witnesses confirming the position or approval of a party. The court also does not verify such facts, which is especially important in numerous processes involving the same people. Circumstances or facts are taken for granted.
Well-known facts
Judicial practice under Art. 61 Code of Civil Procedure is the most difficult in terms of what are considered generally known facts.
Least of all questions is the dating of events - it is usually prescribed in the texts of normative acts.
Similar facts are mentioned in decrees of the President (the use of repressions against peoples or groups of people on ethnic and religious grounds).
Developing the provisions of the legislation, the Supreme Court of the Russian Federation mentions repressions against the Ingush as a well-known fact (the court ruling was adopted in 2016).
The Moscow City Court in one of its decisions recognized the fact of the presence of wild animals in the forests and the inability to control them and limit the sudden appearance on the road.
The facts of unrest, uprisings, civil wars on the territory of one or another country in our time, obtained from the news, are generally recognized.
A local court may, without proof, recognize the fact of heavy traffic in the city where the case is being examined.
Civil Judicial Acts
The Code of Civil Procedure provides reference to court orders. This includes the rulings and decisions of the courts of first and second instance, the rulings of the courts of cassation and supervisory review. Indeed, paragraph 2 of Art.61 Code of Civil Procedure of the Russian Federation refers to all judicial acts, which concludes the trial. For example, the definition of refusal to open production.
Judicial acts are relevant if they were adopted during the consideration of a dispute between the same parties (plaintiffs, defendants, third parties, interested parties).
It should be noted that when replacing a person participating as a party to the process, succession provisions apply.
Judicial acts adopted by the results of the arbitration process
Comments Art. 61 Code of Civil Procedure oblige to take on faith the facts and circumstances revealed by the arbitral tribunal and reflected by it in its judicial acts. The law prohibits checking or contesting them in a civil proceeding if it is conducted by the same persons or their successors.
Court sentence
Sentences, rulings, court rulings, which end criminal proceedings, answer two questions:
- what action or inaction was committed by the person;
- fact of guilt of a person in committing a crime.
All other facts, such as the amount of damage, are not valid. They are proved in general order.
If the court dismissed the civil suit in the criminal process, the plaintiff has the right to file it again, but within the framework of the civil case. If he was rejected as part of a civil case, then he will no longer be considered in a criminal case.
Notarial acts
Documentary results of notarial activities are accepted on faith, but not in the same way as judicial acts. A party has the right to challenge the legality of the actions of a notary and a document issued by him within the framework of a judicial process.
A party has the right to declare a forgery of documents, and then the court (if there are objective reasons) will order an examination to verify the argument.
This position not only emphasizes the importance of the activities of a notary, but also relieves people of red tape, the need to prove the obvious.
Administrative responsibility
Decisions of courts or administrative authorities result from prosecution. However, the Code of Civil Procedure does not say anything about the status of these documents, despite their official status.
The clarifications of the judiciary contain the opinion that these documents confirm the fact of an illegal act or omission, and practice confirms this opinion. For example, in litigations about causing harm as a result of an accident, traffic police or court decisions adopted under the Code of Administrative Offenses are actively applied.
Here the lack of law is compensated by official explanations, which is emphasized by Art. 61 Code of Civil Procedure of the Russian Federation with comments.
Judicial acts adopted under CAS
Nothing is said about them, but despite the gap in the law, the principle of binding decisions made for citizens, organizations and authorities, which include the courts, remains.
So far, there are two opinions. One is connected with a literal interpretation of the provisions of the article and excludes the application of prejudice in relation to administrative acts.
Another opinion is based on the use of analogy and clarifications, which, however, were given for the adoption of CAS and related to the Code of Administrative Offenses and the agro-industrial complex.
In some CIS countries, the Code of Civil Procedure explicitly prescribes the precedence of an administrative offense order and judicial acts adopted under the CAS (for example, in Ukraine).
Finally
Art. 61 GIC describes the criteria for facts or circumstances that do not need to be proved. In reality, lawyers are more often confronted with facts from previously adopted judicial acts and which are considered generally known.
Despite the amendments made, the article does not fully regulate the issue of prejudice, which is partly replaced by judicial practice and official clarifications.
Despite this, the provisions of the article help maintain the stability of earlier decisions and avoid reviewing previously established facts.