An application (sample below) at the request of certain documents has its own nuances. We will analyze them in this article.
The demand for evidence (Code of Civil Procedure of the Russian Federation, Article 57): implementation of initiative
Procedural legislation gives the parties initiative in the civil process. This means that every citizen has the right to defend his point of view in court. Judicial proceedings are based on principles such as:
- competitiveness and equality of arms;
- court independence;
- objective consideration of the case.
The petition for the demand for evidence is a tool that in practice is capable of implementing these principles. It has a specific goal - to objectively consider controversial issues in civil matters.
What you need to know when writing
The petition for the demand for evidence does not have an established, “correct form”, but the following points must be kept in mind:
- Time. It is advisable that a request for evidence be sent to the court well in advance of the trial. Otherwise, it may be rejected, citing the delay of the process. In jurisprudence, this is called "abuse of law."
- The specifics. It is imperative to indicate in the requirements for what purposes certain written documents are needed. The court also has the right, referring to Article 57 Code of Civil Procedure of the Russian Federation, reject the application with the wording: "Documents do not apply to the case in question."
An open form in court is the key to success
Experienced lawyers know that at the hearing you need to keep a couple of prepared open application forms. It is not known how things will turn out. For example, in court, the defendant claims that he never requested a particular order. This is hard to confirm. The court will believe the defendant, most likely. An open form will help for this. In it, by hand, you can request a copy of the journal about the organization’s incoming mail, indicating that the defendant is cheating. A request for evidence in this case will help for an objective review of the case.
What to specify
We have already noted above that there is no single application for the demand for evidence in the case. However, despite this, it is necessary to indicate the name of the court, the parties to the process, evidence to be presented in court, as well as an explanation. The last point is very important. The further consideration of the case depends on him. If you do not indicate exactly what the requested documents can indicate, the court is likely to reject all requests. On the one hand, this is quite logical: why delay the process, request documents if they are useless? On the other hand, judges often use this clause in the procedural code and reject important documents. In this case, you need only hope for an appeal.
Obtaining evidence independently is the responsibility of the parties.
Before a court session, it must be remembered that written evidence must be provided by the parties, not the court. If one of the parties was able to obtain important copies of documents independently, then there is a risk of refusal to satisfy the requirements. Another thing is that written evidence cannot be obtained. For example, they are with the employer in a labor dispute. The employee asks for the necessary copies, but the defendant pulls over time.This will be the basis to file a petition for the demand for evidence with a note that they independently attempted to obtain important copies. In this case, the court has no choice but to satisfy it.
The admissibility and importance of evidence
So, we have already said that in addition to the requirements themselves, it is necessary to indicate why evidence is needed. A sample might look like this:
“In the Kalinin district court of the city of Barnaul, civil case No. 2309/2016 is being considered. For the purpose of a comprehensive and complete review of the case, I ask you to ask the defendant for the following copies:
- order on approval of the schedule;
- class schedules;
- labor contract.
These documents contain my working time, place, and the nature of my work. Consequently, they can prove the illegality of dismissal. I myself tried to get them from the defendant, but he did not provide them to me, which is confirmed by a copy of the statement stamped by the secretary of the organization about the requirement for these copies. ”
Content may differ from what we have provided. You can add excerpts from the articles of the Code of Civil Procedure. This is art. 57 Code of Civil Procedure of the Russian Federation. Our application (sample) does not contain legal regulations. However, this is not a violation of procedural law. He is obliged to consider and make any decision. A positive verdict on it does not depend on the form, but on the content. In other words, it is important to indicate everything reasonably in it.
The second instance is not the second attempt
If it happened that during the civil process you still lost, and the first instance rejected the important, in your opinion, arguments, then it is necessary to submit it to the court of appeal. We will not touch upon the rules for filing, a sample complaint, etc. within the framework of this topic. We are now interested in what to do with the application for the demand for documents. It must be borne in mind that the second instance is not the second attempt. You can not consider it from scratch. The appeal is based on those materials that are already in the case. Therefore, logically, nothing can be requested. However, for some things there is an exception.
If the party demanded this or that evidence, but the district court considered it insignificant for him to attach it, you can try to request a second time. Perhaps the panel of judges will consider this document important. The second reason that they can satisfy the application was that in the first instance it was impossible to obtain evidence. Despite the fact that such cases are very rare, procedural legislation does not exclude them.
Conclusion
Sample petition to court It will not help in business on its own, if you do not know some of the nuances. We hope that our advice will help in the future to assert our rights and legitimate interests. After all, forewarned means armed.
