Topic 8. EVIDENCE AND EVIDENCE

Task No. 138 156

Smekhova filed a lawsuit against Smekhova for the recovery of alimony. During the preparation of the case for trial, the court found that the defendant was already paying alimony to Avdeeva for the maintenance of the child from her first marriage. Considering that the satisfaction of Smekhova’s claim may become the basis for Smekhov’s filing a lawsuit to reduce the amount of alimony against Smekhova and Avdeeva, the judge instructed the bailiff to check whether the Smekhovs really do not live together, do not run a common household, as he claims in his statement is true. The act of the bailiff-executor on the examination of the living conditions of the Smekhovs was examined in court and formed the basis for the decision in the case.

Are the actions of the court correct?

Is the act of the bailiff-executor evidence in the case?

Problem #139 157

In August 2010, Rakhmanova applied to the Khabezsky District Court of the Karachay-Cherkess Republic with an application to declare her husband dead. The applicant pointed out that in December 2009 Rakhmanov, as a guide, had accompanied a group of climbers climbing one of the peaks of the Elbrus region. As a result of the avalanche, communication with the climbers was interrupted.

The search for the missing, carried out by the departments of the Ministry of Emergency Situations, did not give any results.

At the court session, it was established that Rakhmanov really accompanied the group of climbers at the time indicated in the application. At the same time, the judge, knowing that the avalanche had indeed taken place, invited Rakhmanova to present evidence to confirm this fact.

Did the judge do the right thing?

Determine the subject matter of the case.

Task number 140 158

Lebedeva filed a lawsuit against Irina Marysheva for the recognition of her children Elena, 10 years old, and Vera, 12 years old, the right to inherit part of the house that belonged to Ivan Maryshev. In a statement, Lebedeva indicated that she had lived with the deceased in the same family for 8 years. During this period, daughters were born who were dependent on him. On the day of Maryshev’s death, the family lived in his house. On the basis of a court decision, alimony was collected from Maryshev for the maintenance of children. According to Maryshev’s will, all his property was bequeathed to his sister Irina.

The defendant denied the fact that Lebedeva’s children were dependent on her brother and claimed that Maryshev was periodically treated in the hospital and lived with her for about the last two years of his life.

What facts are included in the evidence in the case?

How is the burden of proof distributed?

Problem #141 159

Ensign Igolkin fired a rocket launcher on New Year’s Eve. One of the charges accidentally hit the kitchen window of the apartment located on the second floor, where the minor Abramov was at that time. As a result of the explosion of the charge, Abramov suffered a gunshot wound to the head of the right periocular frontal-temporal region, a depressed comminuted fracture of the parietal-temporal region, a massive fracture of the vault and base of the skull, and a severe contusion of the brain.

By a court verdict, Igolkin was found guilty under Part 1 of Art. 118 of the Criminal Code of the Russian Federation in causing grievous bodily harm through negligence. The court determined correctional labor for a period of 1 year as a punishment.

Abramov’s mother filed a lawsuit against Igolkin for compensation for harm caused to her son’s health and compensation for non-pecuniary damage.

What facts are included in the evidence in this case?

What evidence should be presented (collected) to confirm them?

Task No. 142 160

Petrova purchased a music center from ZAO Trading House Voskhod. After three days of its operation, the sound quality dropped sharply, extraneous noise appeared, and the playback speed slowed down.

Petrova filed a lawsuit against CJSC to terminate the contract for the purchase and sale of the music center and compensate for the losses caused, referring to the fact that she was sold goods of inadequate quality, for which a warranty period was established.

Determine the facts included in the subject of proof in this case.

How should the burden of proof be divided?

What is an evidentiary presumption?

What evidentiary presumptions do you know?

Task No. 143 161

In December 2009, Ryazantsev entered into an agreement with the Paradise travel agency for the provision of tourist and excursion services on a trip along the Teberda-Dombay route from December 30, 2009 to January 2, 2010. The package of services included travel by a comfortable bus and accommodation at the recreation center in Teberda in a 4-bed room with private facilities and two meals a day. A walking tour around the village of Teberda was paid separately.

Arriving at the resting place, Ryazantsev discovered that the room was unsuitable for living: the room was not heated, the walls were covered with mold, there was no cook at the recreation center and there was no catering unit. The travel agency settled Ryazantsev in the premises of the hostess, not intended for living.

The travel agency refused to satisfy Ryazantsev’s claim, in connection with which the latter applied to the Oktyabrsky District Court of Rostov-on-Don with a claim for damages and compensation for non-pecuniary damage.

The defendant did not recognize the claim, indicating that the services were rendered to the plaintiff in full. It was not known in advance that the base would not be able to receive tourists, so a force majeure situation arose. Regarding the walking tour, the representative of the travel agency explained that although it was not carried out, “walking in search of accommodation with the leader of the group can be counted as a walking tour.”

Ryazantsev presented photographs of the premises where he was placed at the court session and asked that they be attached to the case file.

In addition, he filed a motion to send a letter of request to the Moskovsky District Court of Tver for the purpose of questioning the witness Pastukhov, who was unable to come to Rostov due to illness. The witness can confirm the facts of improper provision of services referred to by Ryazantsev.

The judge refused to attach the photographs to the case, pointing out that they were not relevant to the case and caused him doubts about the authenticity.

The judge refused to satisfy the second request, arguing that the evidence is not needed in the case, since the obligation to prove the proper provision of services is assigned to the defendant.

Determine the subject of evidence in this case.

How are the burdens of proof divided?

Are the referee’s actions and explanations correct?

Problem #144 162

Khasanova purchased a mink coat worth 90,000 rubles in a fur trade pavilion. After the first wear in snowy weather, the fur coat lost its presentation: the fur shed, and on the sleeves and collar began to fall out. The individual entrepreneur Akhmedov, who rented a trading pavilion, refused to satisfy Khasanova’s demand for the return of the cost of the goods. Khasanova filed a lawsuit demanding termination of the contract, compensation for damages and compensation for moral damages.

At the hearing, Akhmedov explained to the court that his refusal to satisfy Khasanova’s claim was based on paragraph 5 of Art. 18 of the Law of the Russian Federation “On Protection of Consumer Rights”. In accordance with this norm, the requirements of the consumer when selling goods with defects are considered by the seller upon presentation of a sales (cash) receipt or other document certifying the fact of purchase. Khasanova, however, was not provided with such a document.

In connection with the defendant’s objections, the plaintiff explained that she had a sales receipt, but she lost it. The fact of purchasing goods from Akhmedov can be confirmed by her friends Milentyeva and Kushnareva, who helped her choose a fur coat. The plaintiff filed a motion to interrogate them as witnesses.

The court refused to satisfy this petition, referring to the fact that the fact of concluding an agreement in the amount of more than 10 thousand rubles minimum wage in accordance with Art. 161-162 of the Civil Code of the Russian Federation can only be confirmed by written evidence, and witness testimony is unacceptable.

Are the actions of the court correct? What is the content of the rule of admissibility of evidence in civil proceedings?

Problem #145 163

Yaroslavtsev filed a lawsuit against Mironov’s widow – his legal heir – to recover 70,000 rubles. In the statement of claim, the plaintiff indicated that the money was borrowed by Mironov to buy a car, but was not returned due to the death of the borrower. The plaintiff asked to request copies of personal accounts from the branch of Sberbank, from which it is clear that he withdrew 70,000 rubles from his accounts. On the same day, they were credited to Mironov’s account, and then withdrawn on the day the car was bought. Letters from Mironov with gratitude for financial assistance and a promise to repay the debt were attached to the statement of claim.

Yaroslavtsev pointed out that Mironov’s widow recognized the debt and promised to pay it off. The promise was made a month after Mironov’s death at the institute where he worked, in the presence of several employees of the institute. Later, the defendant began to evade payment of the debt. Yaroslavtsev asked to call the workers indicated by him as witnesses in the case.

The judge refused to call witnesses, referring to the provisions of Art. 161-162 of the Civil Code of the Russian Federation. The request for copies of personal accounts was also refused, since, in the opinion of the judge, they are not relevant to the case and cannot testify to the conclusion of a loan agreement. The judge attached Mironov’s letter to the case file, but indicated that it had no evidentiary value, since the amount for which Mironov thanks was not indicated in the letter.

Analyze the correctness of the actions and explanations of the referee.

What are the rules of relevance and admissibility of evidence?

Problem #146 164

The court considered a civil case on the claim of Arkadyeva against OOO Rai for compensation for material damage caused to property in the amount of 30,000 rubles. The plaintiff indicated that she works in the LLC as a secretary-referent. In accordance with the terms of the employment contract, Arkadieva used a computer that belongs to her by right of ownership to carry out her duties. The LLC undertook to pay compensation for the use of this property, and in case of damage or loss, fully reimburse the cost. As a result of a fire in the premises of LLC, the computer burned down. Arkadyeva appealed to the defendant with a demand for compensation for the material damage caused to her, but the LLC refused to pay the amount indicated by the plaintiff.

At the court session, the representative of the defendant did not dispute the fact of causing harm, however, he did not agree with the amount of the amount to be recovered, believing that it was overstated.

The judge regarded the non-disputing of the fact by the defendant as his recognition and ruled on partial satisfaction of the claim in the amount of 20,000 rubles.

Is the referee correct?

Determine the subject matter of the case.

What is the procedural order of recognition of the fact?

Problem #147 165

When considering the case on Zhivov’s claim against CJSC Khleboprodukt for compensation for harm caused to health and compensation for moral damage, the plaintiff filed a challenge to the witness Gorin. The plaintiff pointed out that the witness is in an employment relationship with the defendant, and therefore may be interested in the outcome of the case. The court granted the motion to dismiss.

At the same court session from giving evidence with reference to Art. 51 of the Constitution of the Russian Federation, Zhivov’s uncle, Komarov, who witnessed the fact of harm, was released.

After examining the affidavits of the plaintiff’s wife, who is being treated in the hospital, certified by the deputy chief physician, the court satisfied Zhivov’s claim.

What mistakes were made in the case? List the grounds for exemption from giving evidence.

Task No. 148 166

Citizens of Sweden Peter and Brigitte Swenson applied to the court for the adoption of Ivan Nikitin, 8 years old. Documents referred to in Art. 271 Code of Civil Procedure of the Russian Federation, some of which were in Swedish.

The judge of the regional court left the application without movement. The ruling stated that documents written in a foreign language must be translated into Russian. Such a translation must be notarized. The judge gave the applicants a deadline to correct the shortcomings.

Are the judge’s explanations correct?

Under what conditions can documents obtained in a foreign state be used in civil proceedings?

Problem #149 167

Transtelecom OJSC filed a lawsuit against Vysheslavtsev to recover 34,105 rubles. under a contract for the provision of cellular services. The defendant did not recognize the claim at the court session, referring to the fact that he did not sign the contract and did not use cellular communication services. The document presented by the plaintiff, according to Vysheslavtsev, is forged.

The judge demanded the defendant’s passport, compared the signatures on the passport and the contract, and, having established that they did not match, excluded the contract from evidence.

Are the actions of the court correct?

What should have been done in this case?

Task number 150 168

G. filed a lawsuit against the editors of the newspaper Poslezavtra and journalist P. to refute the information discrediting his honor and dignity. In support of the claim, G. pointed out that in the course of the campaign for the election of deputies to the Legislative Assembly of the region, an article was published in the newspaper under the heading “Homosexuals strive for power”. In it, in particular, it was said about G. as “About a prominent representative of the same-sex movement in the region.” This information, according to G., is false and discredits his honor and dignity.

At the court session, journalist P. claimed that the information disseminated about G. was true. The defendant filed a motion to investigate a video recording made by him in one of the local nightclubs, in which, according to the defendant, G likes to relax. record.

G. objected to the examination of the video recording in the court session, referring to the guaranteed Art. 23 of the Constitution of the Russian Federation, the inviolability of the private life of a citizen. According to G., the video recording in this case is inadmissible evidence, since it was obtained in violation of the law.

Determine the subject of evidence in this case.

How are the responsibilities for proving the facts that constitute it distributed?

Analyze the arguments of the parties regarding the possibility of using the video recording as evidence in the case.

Problem #151 169

The AK publishing house and the writer Sidorov filed a lawsuit against Chubov for copyright protection. The statement of claim stated the following: Sidorov’s novel “Red Meat” was published by the AK publishing house in November 2009. According to the agreement between Sidorov and the publishing house, the rights to publish the novel “Red Meat” belong to the publishing house. Sidorov did not betray these rights to anyone else: neither individuals nor legal entities.

However, in December 2009, in violation of the rights of Sidorov and the publishing house, the novel was found on the Internet on the website of the defendant Chubov. The defendant, without the permission of the author or publisher, posted the scanned text of the novel on the Web on his website, which makes it possible for anyone to download an unlimited number of copies of it.

The plaintiffs referred to the fact that they, on their own initiative, before filing a lawsuit in court, received a conclusion from specialist Kirillov, from which it follows that the defendant’s website contains a link to the text of the novel, when activated, it is loaded into the computer’s memory.

The defendant did not recognize the lawsuit, indicating that he discovered the novel “Red Meat” on a free Internet channel. The defendant’s website does not contain the text of the novel or a link to it. The site has a link to a link. Chubov did not distribute the text of the novel and is not going to distribute it.

The court, referring to the conclusion submitted by the plaintiffs, issued a decision, which satisfied the claim.

Did the court do the right thing?

Determine the subject matter of the case.

Task No. 152 170

The prosecutor, in the interests of the disabled Remizov, filed a lawsuit to invalidate the contract for the sale of an apartment concluded between Remizov and Sidorov, referring to the following. According to the prosecutor, at the time of the deal, Remizov was not able to understand the meaning of his actions or control them.

According to the conclusion of the forensic psychiatric examination, carried out on the basis of a court ruling, on an outpatient basis it is not possible to resolve the issue of the degree of change in the psyche of Remizov and his ability to understand the meaning of his actions during the certification of the contract for the sale of an apartment or to manage them. To address these issues, a stationary forensic psychiatric examination should be appointed.

Since Remizov did not appear at the court session and did not inform the court about the reasons for his non-appearance, the court, without appointing an in-patient examination, regarded Remizov’s absence as an evasion from participation in the examination.

The court decision stated that the fact of Remizov’s inability to understand the meaning of his actions or manage them when concluding a deal should be considered refuted.

Are the actions of the court correct?

What are the consequences of a party’s refusal to participate in the examination?

Problem #153 171

The court considered the case on the claim of Alexandrova to Fadeev for compensation for harm caused to her health. The defendant could not appear at the hearing, as he was serving his sentence in places of deprivation of liberty. He was sent a copy of the statement of claim, and the court received a written explanation from the defendant regarding the claim.

The prosecutor who participated in the case to give an opinion in accordance with Part 3 of Art. 45 of the Code of Civil Procedure of the Russian Federation, objected to the inclusion of Fadeev’s written explanation in the case, since he believed that the defendant, in all cases when he cannot appear in court, is subject to interrogation by way of a letter of request.

The judge sent an order to the administration of places of deprivation of liberty at the place where Fadeev was serving his sentence to interrogate him as a witness.

Are the prosecutor’s objections and the judge’s actions correct?

What is the procedure for sending and executing a court order?

Problem #154 172

The policeman applied to the court at her place of residence with a request to interrogate the witness Akhmadeev in order to secure evidence. At the same time, she pointed out that Akhmadeev was in old age, and besides, he was seriously ill. However, he was present at the drafting of the will by the father of Politzan and can confirm that the testator was in a state where he could not understand the meaning of his actions or direct them. The policeman intends to challenge the broadcast in court.

Should the court grant the policeman’s request?

What is the procedure for securing evidence before and after filing a claim?

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