Art. 79 Code of Civil Procedure of Ukraine talks about the appointment of expertise in the framework of the trial. For what reasons is it held, who is entitled to ask for an appointment, does the court have the right to take the initiative? How are documents processed? We will touch upon judicial practice.
Normative regulation
The issues of appointment and examination are regulated by various regulatory acts:
- GIC - describes the procedure, the rights of the parties and the powers of the court.
- Law "On state forensic science activity."
- Instructions of departments, in particular the Ministry of Justice.
The application of the rules on the appointment and conduct of expertise in civil proceedings is only partly analyzed. Practice review released. The Plenum did not follow him. Moreover, the discussion of the aspects of the topic under discussion is touched upon when analyzing the consideration of certain categories of cases by the courts. In particular, in establishing paternity.
Thus, Art. 79 GIC regulatory framework in this area is not limited.
What are the purposes of the examination
The study of the circumstances of the case is not limited to documents, physical evidence, testimonies of witnesses and explanations of the parties. The judge must use the results of expert research. In some cases, the application of Art. 79 Code of Civil Procedure was developed, for example, in cases on the division of home ownership. In other situations, the appointment of expertise is a moot point.
The law speaks of special knowledge in the field of science, technology and craft. If you do not take into account the categories of legal proceedings, then the examination in practice is carried out in order to clarify:
- amount of damage;
- a causal relationship between the actions of the defendant or the defendant;
- values of the disputed property, the possibility of its actual division.
Thus, the role of an expert is to search for answers to specific questions.
Types of Expertise
Consider some types of examinations that are appointed by the courts in accordance with Art. 79 Code of Civil Procedure:
- medical (psychiatric as its kind);
- merchandising;
- accounting;
- scientific and construction;
- handwriting.
The list can be continued almost ad infinitum. As it was written above, the appointment of examinations in some cases is due to the prevailing practice of application, in some cases it is directly indicated in the text of the document.
Psychiatric examination is mandatory for cases of deprivation or limitation of legal capacity, in cases of inheritance, where the adequacy of the person at the time of writing the will is called into question.
Who does the research
According to Art. 79 Code of Civil Procedure of the Russian Federation, the examination is provided by the institution, a specific expert or experts. If the materials are transferred to the organization, its head selects a specialist at its discretion.
If the task is carried out by several experts in the same field of knowledge, it is called a commission, but if it is by representatives of different fields of knowledge, it is complex.
The parties have the right to choose an expert at their discretion, in any case, the court is obliged to explain such a right to them. Most often, the judge proposes an organization or person to whom it can be entrusted.
The regulatory documents note that institutions subordinate to the Ministry of Internal Affairs and the FSB are required to carry out research at the request of the courts, provided that there are no organizations subordinate to the Ministry of Justice or non-state institutions in the area.
Appointment Procedure
It should take into account the relationship of the provisions of Art. 79-80 Code of Civil Procedure of the Russian Federation. The study is initiated by the court or parties, third parties or the prosecutor. The clarification notes on the solution of this issue at the stage of the preliminary meeting. The need for expertise may arise later.
The judge invites the parties to raise questions, if he agrees with them, they are included in the ruling. In case of refusal to approve the issue proposed by the participant, the judge must justify his refusal. One reference to the fact that it is not related to the subject of discussion is not enough.
Materials for the study are attached to the court ruling and transferred to the expert. At the same time, the court has the right to provide the expert with the collection of materials, if this is not done in the courtroom. Preparation for genetic examination is carried out directly in the laboratory.
Rights of process participants
The participants in the process have the right to protest against the examination. They have the right to:
- get acquainted with the court ruling, materials that are sent to the expert;
- participate in the selection of questions;
- challenge the appointed expert;
- get acquainted with the drawn up conclusion;
- to ask the court to appoint a second or additional examination.
Repeated examination will last if necessary to fully conduct a new study, additional if there is a lack of answers to all questions or their incompleteness.
In the commentary to Art. 79 Code of Civil Procedure indicates the right of a party to file a private complaint against the ruling on the appointment. It is allowed to appeal the refusal to appoint an examination, including a new or additional one by filing a private complaint. It is not forbidden to refer to violations in complaints about a court decision on the merits in subsequent instances.
In the course of studying the expert’s findings, the participants in the process have the right to interrogate him in court.
Judicial acts on appointment of expertise
More often, when discussing the examination, they mention Art. 79 Code of Civil Procedure of the Russian Federation with comments, but the provisions of Article 80 of the Code are equally important. They reflect the content of the definition of the purpose of the study, how the document should be formulated. The structure is as follows:
- court name or magistrate's number;
- the date of the decision on the appointment of the examination;
- date by which the examination should be performed;
- F. I. O. or the name of the organizations participating in the process;
- name of examination;
- facts whose confirmation or refutation is required;
- questions that the court deemed necessary to ask the expert;
- F. I. O. of the expert, his data as an individual entrepreneur or organization name;
- instructions for handling the materials used;
- Indication of the party obligated to pay;
- warning of responsibility for refusing to give an opinion or providing false conclusions;
- appeal procedure and signature of the judge.
A copy of the definition is sent to the selected expert. About the responsibility. If the task is entrusted to the organization, then its leader is obliged to select a receipt of responsibility and attach it to the materials of the examination.
Payment is made by the party that requested the appointment of an examination. If the judge appoints the study on his own initiative, payment is made at the expense of the state budget.
The consequences of evading or refusing an examination
In paragraph 3 of Art. 79 Code of Civil Procedure of the Russian Federation lists the consequences of the refusal of the party to participate in the examination. If the second party does not submit materials, documents, refuses to take another part in the study, the law allows to do without examination. The court acknowledges or refutes the fact in its decision, depending on its significance for the guilty party.
Thus, failure to fulfill the obligation to create the conditions for the examination has serious consequences.
Arbitrage practice
The Supreme Court, analyzing the practice of applying the articles of the codex devoted to examination, came to a number of conclusions. The judges, despite the instructions of the law, did not warn the parties and other persons about the consequences of refusing or evading participation in the examination.
Interestingly, a refusal to pay is not considered sufficient reason not to conduct a study.
In one of the cases, the court refused the claim for establishing paternity. The reason is the defendant’s refusal to participate in the examination. The higher court overturned the decision, because the court did not take into account the current standards.In addition, the decision of the board noted the study of all other evidence in the case. So, the fact of close relations between the plaintiff and the defendant in the period described by her is not refuted.
Judicial practice under paragraph 3 of Art. 79 Code of Civil Procedure of the Russian Federation reflects the need to identify the reasons for evading participation in the examination or collecting materials for it. Were they intentional?
The state of the regulatory framework
When they talk about Art. 79 Code of Civil Procedure of the Russian Federation in the new edition, do not imply changes in it. They are not at the time of this writing. Make a comparison with the provisions of the previous Code.
The new law has differences. Previously, the conduct of examinations was formally entrusted only to specific experts. The parties did not stand out as a separate category of persons entitled to propose questions to the expert.
The Old Code did not provide for the right to challenge an expert, to propose an organization or expert to whom to entrust a study, to familiarize oneself with materials, to submit requests for a new or additional examination. Thus, the changes are clarifying in nature.
Finally
The appointment of an examination is one of the ways to find out the circumstances that took place in the case. The decision on her appointment is made by the court, the initiative may come from him and from other participants in the case.
Types of examinations are determined by regulatory documents: departmental orders and instructions.
The law requires a definition of the purpose of the study. The consequences of evading or refusing the examination are also indicated, depending on who is to blame and what significance the results may have for him.