Today, the judiciary often draws up application for the appointment of an examination (APC RF) when issues arise during the consideration of a particular matter that, one way or another, require special knowledge in various fields of technology, craft, science, art, and so on. The implementation of the procedure can be entrusted to the forensic structure, as well as to one or more experts. It is important to know that the parties and other persons who take part in the case are entitled to ask the judicial authorities to instruct a certain expert to carry out the procedure. In addition, they may express a desire to produce appointment of expertise to a specific forensic organization, as well as to make a statement regarding the challenge to the expert.
Judicial examination and its features in the arbitration process
To begin with, it should be noted that today forensic examinations are mostly carried out in arbitration, criminal and civil proceedings. It would be advisable to fully consider the procedure for the appointment and subsequent examination in accordance with the first case.
So, the consideration of cases in the arbitration court, if necessary, the implementation of a forensic examination begins with the execution of the application or the consent of the persons who take part in the case. Why so? The fact is that in the case of the arbitration process, the obligation to prove lies with those persons who participate in the case in accordance with article 66 of the Russian agro-industrial complex. Currently, the appointment of an examination by arbitration tribunals on their own initiative is possible only in some cases. Among them are the following items:
- The purpose of the procedure is prescribed by law or provided in accordance with the contract. In addition, it may be necessary to verify allegations of falsification of relevant evidence.
- Is required appointment of additional expertise or a similar event held repeatedly.
Participants in the arbitration process
In this chapter, it would be advisable to touch on the decision of the Plenum of the Supreme Arbitration Court “Regarding some practical issues regarding the application of the legislation on examination by the arbitration courts”. So, when referring to Part 1 of Article 82 of the Arbitration Procedure Code of the Russian Federation, which relates directly to the appointment of the procedure, subject to the consent of the persons participating in the case, the arbitration judges must understand that they include not only the main parties, but also the prosecutor, third parties, as well as bodies that protect public or state interests (article forty Russian agribusiness).
This means that if the listed persons did not deign to file a request for the appointment of an examination and the procedure cannot be appointed at the initiative of the judicial authorities, in order to implement the event under such circumstances, it is necessary to obtain the consent of absolutely all persons who take part in the case. It is important to add that, due to the absence of another agreement, the listed persons undertake to deposit monetary amounts in equal parts payable to the staff of expert bodies on the deposit account of the arbitration judicial authorities (part one of Article 108 of the Arbitration Procedure Code of the Russian Federation).
However, the event in question can be appointed by a judge solely in the process of preparing the case for proceedings strictly under paragraph 3 of Article 135 of the APC of the Russian Federation. It should be noted that grounds for appointment of expertise - Nothing but certain circumstances of the case, as well as the evidence presented.
Request for an event
You should be aware that a request for the implementation of the current procedure may be filed with the judicial authorities of the first instance (less commonly, the appeal) before the chairman at the hearing declares the investigation of the evidence completed (part one of Article 164 of the RF Arbitration Procedure Code). In the case of the resumption of their research, it is necessary to wait for the announcement of the end of the additional procedure with respect to evidence in accordance with Article 165 of the APC of the Russian Federation.
It is important to note that the petition is categorized as appointment and production of expertise, in the judicial authorities of the appellate court it is considered strictly taking into account the relevant provisions of the second part of Article 268 of the Arbitration Code. In accordance with them, evidence of an additional plan is accepted by the judicial authorities when persons actively participating in the case justify the impossibility of submitting them to the judicial authorities of the first instance because of reasons that are in no way dependent on them, and the judicial authorities acknowledge the reasons presented.
Selection of candidates
Any entity involved in an event such as arbitration process, is vested with the full right to make proposals on the candidatures of experts (part three of Article 82 of the APC of the Russian Federation). It is important to note that the number of candidates is not formally limited. Nevertheless, in practice, the judiciary draws attention to the criteria of reasonableness, cost savings and rationality. Reflective Article 82 of the APC of the Russian Federation current edition It does not contain a norm regarding the admissibility of rejection by the judicial authorities of the candidatures of experts, which are strongly recommended by the parties to the dispute. This right arises from other articles of the Russian agro-industrial complex.
In the end, today, as a forensic expert, only a person who possesses such special knowledge that is necessary to give a competent opinion can somehow act. You need to know that the court practice characterizing Article 82 of the APC of the Russian Federation suggests that in the absence of this knowledge from a citizen, the court will never appoint him an expert. This will happen despite what has been indicated in the application and what the initiative of the judiciary is directly.
Place of Examination
Having fully considered order of appointment of expertise, as well as its implementation, it will be advisable to identify places relevant to the implementation of the event. Currently, a forensic examination is appropriate both in an institution of a state nature and in a structure of a non-state nature. It is important to know that only persons with special knowledge can be involved in the procedure.
Article 82 of the APC of the Russian Federation with comments for practical activities, it assumes that the conclusion of an employee of an expert organization of a non-state type can in no way be disputed. Nevertheless, in practice, often such measures are appropriate when commissioning an expert examination by a state-type forensic structure.
Then, when the event is held in a state expert organization, the judicial authorities in order to ensure that the persons participating in the case exercise their rights to challenge an expert, as well as the right to file a motion regarding the involvement of individuals as experts, are indicated in the documentation on the appointment of the event itself, not only the name of the institution, but also a complete breakdown of the initials of the state expert, who is instructed to conduct the procedure from the head of the state forensic structure.
Expertise in a non-governmental institution
Then when arbitration process involves an examination in a structure of a non-state type, the judicial authorities, in addition to the above information, find out information regarding the professional data of the selected employee of the expert institution. In any case, in the determination regarding the appointment of the examination, it is necessary to indicate the name of the expert organization of a non-state type, as well as the surname, name and patronymic of the expert directly. In the case of an instruction to implement the procedure to a person who is not a state-level forensic expert, the following data must be indicated in the determination regarding the appointment of the examination:
- Full decoding of the expert’s initials.
- Information about his specialty and education in general.
- Information about the position and work experience.
additional information
In accordance with Article 82 of the Arbitration Procedure Code of the Russian Federation the determination, one way or another, should reflect the fact of an expert warning by the court about criminal liability in the case of knowingly false testimony and, of course, the conclusion in general. It is important to know that in the determination on the purpose of the procedure under consideration, in addition to those presented above, the following issues must be strictly resolved:
- Duration of the event.
- The amount of remuneration to the expert institution (expert), which is determined by the judicial authorities in agreement with the persons participating in the case, as well as in agreement with the expert structure (expert).
Then, when the need for a plan for resolving these issues arises in the process of preparing the case for consideration, in addition, for this, one way or another, an additional time period is required, the arbitral tribunals in force Article 82 of the Arbitration Procedure Code of the Russian Federation may apply the right associated with the announcement of a break (no more than five days) in a preliminary court hearing. Then, when the need to identify these data arises in the course of the trial, the arbitral tribunal has the right to postpone the proceedings directly or declare a break in relation to the court session.
You need to know that in order to obtain information about the possibility of carrying out the procedure considered in the article, its timing and cost, the judicial authorities send a corresponding paper to a certain expert (expert structure), which indicates that the trial is postponed for that or a different period or a break is taken. It should be added that in this case an extract from the minutes of the court session will be appropriate.
In accordance with Art. 82 APC of the Russian Federation, in the case of the appointment of an examination, those persons who take part in the case are vested with the full right to submit questions to the arbitral tribunals for mandatory clarification, as well as proposals for the candidacy of experts. It is important to consider that raising certain issues is just a right, but not the obligation of the persons participating in the case.
Topical issues in the arbitration process
As a rule, in practice, the one who solicits the appointment of an examination, tries to make the task as specific as possible. In order to comply with the principles of procedural equality, the judicial authorities, in a petition, undertake to notify the other persons who participate in the case, as well as to explain to them the right to form their own questions in writing.
When determining the number and content of issues in accordance with which an examination should be carried out, the judicial authorities proceed from the fact that the issues of legal consequences in terms of assessing evidence and directly law are exclusively the responsibility of the judicial authorities.
Nevertheless, in order to establish the norms of foreign law, the judicial authorities have the right to apply for clarification and assistance to the competent organizations (bodies) in the manner prescribed by applicable law or to attract individual experts. In the case of attracting a person who has special knowledge in the field of foreign law, as an expert, the judicial authorities are guided by certain provisions of the Federal Law on Economic Regulation, as well as the rules of the agro-industrial complex of the Russian Federation, which regulate the issues of appointment and subsequent examination (namely Art. 82 agribusiness of the Russian Federation).
You need to know that in the final way the content of the issues in accordance with which it is necessary to obtain an expert opinion is established by the arbitral tribunals. Moreover, they are competent:
- Form new questions at your own discretion.
- Reformulate existing questions, provided that their semantic value is unchanged.
- In a motivated manner, reject the questions that were asked by the parties to the dispute.
It must be remembered that the quality of expert opinion is entirely dependent on their integrity, competence, objectivity and impartiality. That is why the issue of their choice plays such an important role.
Decision on the appointment of expertise
To begin with, it should be noted that the judiciary makes a ruling on the appointment of an examination, which in its structure is similar to the definition of the judiciary in civil proceedings. It includes three parts: introductory, descriptive and resolutive. Currently, the definition contains the following information:
- Reasons for the appointment of the examination.
- Surname, name, patronymic of the expert or the name of the expert structure in which the examination should be implemented; questions that are posed directly to the expert.
- Information and documentation made available to an expert organization employee or individual expert.
- The temporary period during which the event must be carried out and the corresponding opinion is submitted to the arbitration tribunals.
In accordance with part six of Article 55 of the Arbitration Procedure Code of the Russian Federation, in case of failure to comply with the requirements of the arbitral tribunal regarding the provision of an expert opinion (expert) to the judicial authorities within the time period specified in the determination, in the absence of a motivated report, a judicial fine shall be imposed on the head of a state-type forensic structure or guilty of the above violations. In this case, the order and size corresponding to the indicated consequences is determined through the chapter of the eleventh agribusiness of the Russian Federation.
Commission and comprehensive examination
At present, the arbitration tribunals are vested with the absolute right to appoint a commission and comprehensive examination in accordance with Articles 84, 85 of the Arbitration Procedure Code of the Russian Federation. The first part of Article 84 of the Arbitration Procedure Code indicates that the commission nature of the event is determined solely by the judiciary. Nevertheless, a comprehensive examination in accordance with Article 85 of the APC of the Russian Federation is an examination carried out through the efforts of a commission of experts of various specialties. In other words, a comprehensive examination is always a commission.
In the third part of Article 268 of the Arbitration Procedure Code, it is indicated that in the process of considering a case in arbitration courts of appeal, those persons who participate in the case are vested with the full right to file an application for an examination. It is important to note that the judicial authorities of the court of appeal do not have the right to refuse to grant the request because it was not satisfied by the judicial authorities of the first instance. The expert’s opinion in accordance with the results of the examination, appointed in the course of the consideration of the case, under no circumstances can be recognized as a conclusion on the actual case, but recognized by the arbitral tribunals as other documentation that is allowed as evidence. This provision is spelled out in article 89 of the current Arbitration Procedure Code.