Topic 9. PREPARATION OF THE CASE FOR THE COURT, Chapter 5

Problem #266 294

Murashova applied to the Kolomna City Court of the Moscow Region with an application to invalidate the savings book issued by the Branch of Sberbank in Kolomna. In the statement, Murashova indicated that the savings book had burned down in a fire in her apartment. The court scheduled the case for hearing, considered Murashova’s application and declared the savings book invalid.

Did the court do the right thing?

What is the procedure for handling this category of cases?

Problem #267 295

Specify whether the following applications are subject to consideration in the summons procedure:

1) on the invalidation of a safe certificate of acceptance for safekeeping of state loan bonds issued by the Sberbank of Moscow;

2) invalidation of five shares of Closed Joint Stock Company Domstroy stolen from Privalov;

3) invalidation of a bill that has lost the signs of solvency as a result of improper storage;

4) invalidation of a savings book that has lost the signs of solvency;

5) restoration of rights under the lost bond;

6) invalidation of the bill of lading and restoration of rights under it;

7) invalidating the savings certificate belonging to Pikov, which Alikov fraudulently took possession of;

8) invalidation and restoration of rights to the lost discount card of the L’Etoile chain of perfumery products.

Under what conditions is it possible to recognize a security as invalid and restore rights to it in court?

Problem #268 296

On November 29, 2009, a representative of the Nizhny Tagil City Psychiatric Hospital applied to the court for involuntary hospitalization of Petrova.

The statement stated that Petrova’s hospitalization was due to her suffering from a mental disorder. According to the neighbors who went to a psychiatric hospital, the woman suffers from pyromania, she repeatedly made a fire in the apartment. In this regard, the neighbors fear that if left without proper supervision, lonely Petrova, she could burn down the house.

The doctor of the psychiatric institution Sviridov, having familiarized himself with the materials received and examined the patient, decided to hospitalize her.

The case was considered on December 8, 2009 in the premises of a psychiatric hospital with the participation of Petrova. Notified of the time and place of the court session, the prosecutor did not appear for the consideration of the case. The court, considering the circumstances of the case, granted the application of the hospital.

What mistakes were made in the case?

What are the procedural features of proceedings in cases of involuntary hospitalization of a citizen in a psychiatric hospital?

Problem #269 297

The Voskresensky District Court considered the case on the application of Sidorova, born in 1942, to amend her birth certificate. The applicant stated that she was the daughter of Stepanida Prokofievna Sidorova, born in 1922. However, instead of the mother’s name “Stepanida”, the certificate says “Zinaida”. With a request to make corrections to the document, Sidorova turned to the registry office, but they refused to correct the entry, explaining that all documents relating to the required period were destroyed during the Great Patriotic War.

The court granted Sidorova’s application and ordered the registry office to make appropriate corrections to the birth certificate.

Are the actions of the court correct?

Problem #270 298

In December 2008, Vasyutin, six months after the death of her mother as an heir by law, was issued by a notary a certificate of inheritance for a privatized two-room apartment at the address: Moscow, st. Geroev Panfilovtsev, 24, apt. 43.

In January 2009, the Perovsky District Court of Moscow in the manner prescribed by Ch. 37 Code of Civil Procedure of the Russian Federation, filed a statement Prytkina, the sister of the deceased. Considering the performed notarial act to be wrong, she indicated that she had been dependent on her sister for the past four years, but the notary who conducted the inheritance case did not take actions aimed at establishing this circumstance. As a result, her right to receive a mandatory share in the inheritance was violated.

The judge refused to accept Prytkina’s application, motivating his ruling by the fact that the actions (inaction) of notaries that violate the rights of citizens should be challenged in the procedure for proceedings in cases arising from public legal relations, provided for in Chapter. 25 Code of Civil Procedure of the Russian Federation.

What mistakes were made in the case?

What are the procedural features of considering applications for completed notarial acts or for refusal to perform them?

In what order can Prytkina protect her interests?

Problem #271 299

Korotkov applied to the court with an application for the restoration of the lost court proceedings. In the statement, he indicated that four years ago, a case was considered on his lawsuit against his ex-wife on the division of jointly acquired property. At the end of the trial, the court announced the operative part of the decision, and the drafting of a reasoned decision in accordance with Art. 199 Code of Civil Procedure of the Russian Federation was postponed. Shortly thereafter, a fire broke out in the courthouse, as a result of which all the materials on his case burned down. Meanwhile, the applicant plans to apply to the bailiff-executor in order to enforce the court decision, since Korotkova does not execute the decision voluntarily, retaining property, the ownership of which is recognized to him.

How should the court proceed?

What are the procedural features of the consideration of cases of this category?

Task No. 272 ​​300

Ivan Varfolomeev appealed to the Lyubertsy City Court of the Moscow Region with a request to restore the lost court proceedings in the case of the division of the apartment.

Ivan Varfolomeev indicated that in 2006, after the death of his parents, he and his brother Mikhail inherited a three-room apartment No. 33 in house No. 8 on the street. Youth. Disagreeing with the proposed version of the section, Mikhail filed a lawsuit in court. In the course of the consideration of the case, the plaintiff asked the court to return the statement of claim to him. Considering this as a dismissal of the claim, the court terminated the proceedings.

In 2009, having married and in need of separate housing, Mikhail Varfolomeev again applied to the court with a statement on the division.

Ivan Varfolomeev considers his brother’s actions unlawful, since his claim has already been the subject of a trial that ended in the termination of proceedings. However, there are no materials on this case in the archive of the court. They were probably lost when the court moved to a new building.

During the consideration of the application, Mikhail Varfolomeev, interrogated as a witness, stated that during the previous consideration of the case, he did not withdraw the claim, and therefore the proceedings were terminated incorrectly. In addition, at present he is demanding not to allocate his share of living space in kind, but to replace it with monetary compensation.

The court left the application without consideration on the grounds that there is a dispute between the Varfolomeev brothers, which must be considered in the course of action proceedings.

Did the court do the right thing?

Topic 16. PROCEEDINGS IN THE COURT OF APPEALS

Task No. 275 301

The justice of the peace satisfied Katerova’s claim against Katerov for divorce. In the reasoning part of the decision, the justice of the peace indicated that the reason for the breakup of the family was the defendant’s abuse of alcohol, scandals and fights arranged in the family, and the humiliation of the wife’s human dignity.

Katerov appealed to the court of appeal. In the complaint, he indicated that he did not object to the decision to dissolve the marriage, but did not agree with the motives that guided the court, satisfying the claim. The judge refused to accept the appeal, stating in the ruling that the defendant did not object to the decision of the justice of the peace on the dissolution of the marriage and essentially agreed with him.

Did the judge do the right thing?

Can a part of the judgment, in particular its motives, be subject to appeal?

Task No. 276 302

The district court considered a civil case on the suit of Karpenko against Sergeev for the recognition of ownership of the garage, estimated by the plaintiff at 100,000 rubles.

By decision of February 7, the claim was satisfied. On March 7, plaintiff Karpenko sent an appeal against the decision of the district court, received on March 21, by mail to the regional court. The regional court issued a ruling on the refusal to accept the appeal in connection with the missed deadline for the appeal.

On February 10, the district court received an appeal from the wife of the defendant Sergeev, who was not involved in the case, who considered the decision of the district court wrong. The court accepted the complaint.

What are the procedures and time limits for filing an appeal?

Did the district court make mistakes?

Is the action of the district court correct?

Task No. 277 303

The magistrate ruled on the lawsuit of Korolev against Kolpakova on the division of jointly acquired property. The plaintiff filed an appeal against the decision, which was accepted by the justice of the peace. A day later, Korolev appeared in court and demanded his complaint back, explaining that he was refusing the complaint. The judge returned the complaint to him.

A week later, Korolev again appealed to the court with an appeal, indicating that he had changed his mind and nevertheless considered it necessary to appeal the decision.

What should the court do?

Is it possible to return the appeal at the request of the person who filed it? What are the consequences of refusing the appeal?

Task No. 278 304

By the ruling of the district court, the appeal of the defendant Sidorov was left without movement with the reference to the fact that it did not provide arguments to justify the incorrectness of the court decision.

Were there grounds for such a determination?

Is it subject to appeal?

Problem #305

Litvinova S. filed a lawsuit against G. Litvinov for divorce, stating that it was not possible to preserve the family, since marital relations with the defendant had been terminated since 2009. The parties created new families. She is about to marry another man, and the defendant has a woman who is expecting a child from him.

On January 20, 2013, the marriage between the spouses was annulled by the decision of the justice of the peace; daughter Anastasia, born in 2002, and son Dmitry, born in 2003, were left to live with their mother.

On February 28, 2013 Litvinova S. died.

Litvinov G. sought legal advice, reporting the following. After the death of his wife, while sorting through the documents, he found a copy of the court decision on the dissolution of the marriage of January 20, 2013. He was not notified of the hearing, did not know about the dissolution of the marriage, did not agree to it, found out about it only after the death of his wife. Before the death of his wife, he lived with her as one family and there was no talk of divorce. Litvinova S. received a certificate of divorce from the registry office.

Among the documents Litvinov G. also found several bank deposit agreements in different banks opened in the name of his deceased wife.

Having familiarized himself with the case materials, Litvinov G. found among them a statement of the plaintiff dated January 18, 2013 with a request to consider the cases in her absence, as well as, allegedly signed by him, Litvinov G., a statement dated January 15, 2013 on consent to divorce without him participation in the court session.

Litvinov G. asks to draw up a draft appeal in this case.

Prepare on behalf of the defendant the necessary procedural documents in this case.

Task No. 279 306

The district court issued a decision on partial satisfaction of Anikeev’s claim against the Elena dry-cleaning company for compensation for damage caused by damage to a fur coat that was handed over for cleaning. Having considered the case, the district court granted the claim in part.

Believing that his claim was subject to satisfaction in full, Anikeev filed an appeal. The representative of the defendant did not appear at the hearing of the regional court. After making sure that the parties were duly notified, the regional court considered the case in the absence of the defendant and issued a decision, which he called “absentia decision”, by which Anikeev’s claim was fully satisfied.

What are the features of the consideration of the case by the Court of Appeal?

Did the district court do the right thing?

Task No. 280 307

Motylev filed a lawsuit against the Tax and Dues Inspectorate for the city of Novgorod and Tomin to release the country house from arrest. The claims were motivated by the following. The seized property belongs to the plaintiff by virtue of the contract for the sale and purchase of a country house concluded with Tomin and a receipt for the receipt of money by the seller. After considering the case, the justice of the peace dismissed the claim. The judge referred to the fact that the plaintiff did not have a right of ownership, since the contract for the sale of real estate did not pass state registration.

Motylev appealed this decision to the court of appeal. The appellant asked to cancel the decision of the justice of the peace, to recognize his ownership of the seized property, and also to release this property from seizure.

The court of appeal annulled the decision of the justice of the peace, fully satisfied Motylev’s demands, recognizing his ownership of the house and releasing him from arrest.

Did the appellate court do the right thing? What power should the appellate court exercise?

Task No. 281 308

Suvorov filed a lawsuit against Kislov for damages in the amount of 65,000 rubles caused by a traffic accident. In support of his claims, he stated that technical damage had been caused to his car as a result of the accident. The driver Kislov, who was driving the bus, was found guilty of an accident by the traffic police.

By the decision of the court of first instance dated February 10, 2012, the claim was satisfied in full.

On February 21, 2012, Kislov filed an appeal.

When considering the case in the court of appeal, it turned out that the owner of the bus was businessman Yakovlev, and Kislov drove the bus by proxy.

Leaving the decision of the district court unchanged, the court of appeal was guided by the fact that Kislov had a power of attorney to drive the bus, and on the day of the traffic accident he arbitrarily drove onto the line, and therefore he should be held liable for the damage caused.

Did the appellate court do the right thing? Does the appellate court have the right to accept and examine new evidence, to establish new facts?

List the powers of the Court of Appeal.

Task No. 282 309

Khladokombinat No. 14 LLC filed a lawsuit against Karpenko for the recovery of 28,000 rubles. for damage caused to the plaintiff’s car by a traffic accident committed through the fault of the defendant. Karpenko did not appear at the court session, he did not report the reasons for his non-appearance, but in the file there was his receipt in receipt of a notice of the date of the trial. The justice of the peace considered the case in the absence of the defendant and the claim was fully satisfied.

Karpenko appealed against the decision of the justice of the peace to the district court, stating that, as compensation for damage, he handed over to the plaintiff auto parts, the cost of which exceeded the amount of the claim.

What should the appellate court do?

Task No. 283 310

Which of the following rulings of the court of first instance can be appealed separately from the decision to the court of second instance:

1) on the return of the statement of claim;

2) on transfer of the case to another court;

3) on the entry into the case of a third person who claims independent claims regarding the subject of the dispute;

4) on the imposition of a court fine;

5) on termination of proceedings on the case;

6) on refusal to provide evidence;

7) on suspension of proceedings on the case;

8) on refusal to demand written evidence;

9) on refusal to replace the legal predecessor by the successor;

10) on deferred payment of the state fee;

11) on the restoration or refusal to restore the missed procedural term;

12) on refusal to recognize as a third party, declaring independent claims regarding the subject of the dispute;

13) on consideration of the case in absentia proceedings;

14) appointment of the case for trial;

15) on refusal to add up or reduce the court fine;

16) on acceptance of the statement of claim and on refusal to accept the statement of claim;

17) on refusal to satisfy the application for recusal of a judge;

18) on leaving the statement of claim without movement;

19) on refusal to issue an additional decision;

20) on refusal to return material evidence to the person from whom it was received;

21) on preparing the case for trial;

22) private definition;

23) on refusal to accept a counterclaim;

24) on indexation of the awarded sums of money;

25) on securing a claim or on refusal to secure a claim;

26) on the sequence of examination of evidence in a court session;

27) to postpone the hearing of the case;

28) on the appointment of an expert examination;

29) on the postponement or installment plan of the execution of the decision or on the refusal to do so;

30) on the immediate execution of a court decision;

31) on the rejection of comments on the protocol of the court session;

32) on leaving the application without movement;

33) on the return of an appeal, presentation or on leaving them without movement.

Topic 17. PROCEEDINGS IN THE COURT OF THE CASSATION

Task No. 284 311

Remizov, the heir to the deceased Kardanov, filed a cassation appeal with the regional court. In the complaint, the applicant pointed out that the district court had carried out the division of hereditary property without complying with the requirements of Art. 1149 of the Civil Code of the Russian Federation. The court of first instance applied paragraph 4 of the said article and, without sufficient grounds, reduced the size of Remizov’s mandatory share in the inheritance. In particular, the difficult financial situation of Remizov, evidence of which is available in the case, was not taken into account. The legality and validity of the decision of the district court was checked by the court of appeal, which left it unchanged.

The court also received Abaturov’s cassation complaint, which stated that he, being Kardanov’s nephew, had been dependent on him for three years and therefore had the right to inherit. The applicant referred to the fact that the case on the division of hereditary property was considered without involving him in the case, and the decision of the court of first instance affects his rights and legitimate interests.

Who has the right to file an appeal?

Could Abaturov file a cassation appeal?

What should the court do in this situation?

Task No. 285 312

Determine whether the court decisions listed below are subject to appeal to the court of cassation, and if so, indicate to which court:

1) the decision of the Krasnogorsk District Court in the case of recognizing the dismissal as illegal. By the decision of the Judicial Collegium for Civil Cases of the Moscow Regional Court, the appeal against the said decision was left without consideration on the merits;

2) a court order for the recovery of alimony, issued by a justice of the peace of court district No. 3 of the Sormovskiy district of Nizhny Novgorod;

3) the decision of the Medvedevsky District Court of the Republic of Mari El on the application for establishing the fact of marriage registration. The case was not considered on appeal;

4) the decision of the Voroshilovskiy District Court of Rostov-on-Don to terminate the proceedings on the case of recovery of debts for payment of utility bills. By definition of the Judicial Collegium for Civil Cases of the Rostov Regional Court, the private complaint was denied;

5) the decision of the Kaliningrad Regional Court to recognize the strike as illegal. The decision of the Judicial Collegium for Civil Cases of the Supreme Court of the Russian Federation upheld the decision.

Problem #286 313

The district court issued a decision that satisfied Neverova’s claim against Kargopolskaya for the recovery of the principal amount of the debt under the loan agreement. As regards the recovery of interest, Neverova’s claim was denied.

Disagreeing with the court’s decision, Neverova appealed to the regional court with an appeal, in which she asked to change the decision of the district court regarding the refusal to collect interest, referring to the application of an improper rule of substantive law that determines the procedure for calculating interest.

During the consideration of the case by the court of appeal, Neverova filed an application to withdraw her appeal, referring to the fact that she forgives the Kargopol debt in terms of interest under the loan agreement. The Judicial Collegium for Civil Cases of the Regional Court terminated the proceedings on Neverova’s appeal on the basis of Part 3 of Art. 326 Code of Civil Procedure of the Russian Federation.

After that, Neverova appealed to the regional court with a cassation appeal against the decision of the district court regarding the refusal to collect interest under the loan agreement.

What should the Tribunal do in this case?

Problem #287 314

On February 14, 2012, the District Court decided to satisfy the claim of the Open Insurance Joint-Stock Company “Strakh and Guarantee” (hereinafter referred to as OSAO “Strakh and Guarantee”) against Ulyanov for compensation for damage caused by a traffic accident. By an appeal decision of the Judicial Collegium for Civil Cases of the Regional Court dated June 18, 2012, the decision of the District Court was upheld. At the same time, a reasoned ruling was issued by the Court of Appeal on June 22, 2012.

On December 12, 2012, Ulyanov filed a cassation appeal with the presidium of the regional court. By the ruling of December 14, 2012, Ulyanov’s complaint was returned without consideration on the merits with reference to paragraph 1 of part 1 of Art. 379.1 of the Code of Civil Procedure of the Russian Federation, since a document confirming the payment of the state fee was not attached to it. On December 20, 2012, having paid the state fee, Ulyanov re-applied with a cassation appeal. Considering that the deadline for filing a cassation appeal by the defendant was missed, with reference to Part 2 of Art. 376 Code of Civil Procedure of the Russian Federation, the judge of the court of cassation returned the complaint to Ulyanov without consideration on the merits.

How is the time limit for filing an appeal calculated?

Did the judge do the right thing?

Task No. 288 315

On November 8, 2012, the Orenburg Regional Court received Kudoyarov’s cassation complaint against the decision of the Dzerzhinsky District Court of the city of Orenburg dated June 1, 2012 and the appeal ruling of the Judicial Collegium for Civil Cases of the Orenburg Regional Court dated August 30, 2012, by which the decision of the court of first instance was left unchanged. By the decision of the judge of the Orenburg Regional Court dated December 6, 2012, the transfer of Kudoyarov’s cassation appeal for consideration in the court session of the cassation instance was denied.

Considering that the term for the cassation appeal had not expired, on December 18, 2012, Kudoyarov re-applied to the regional court with a cassation appeal, in which he set out additional arguments about the illegality of the appealed decisions.

Are Kudoyarov’s actions correct?

Is it possible to appeal against the decision of the judge on the refusal to transfer the cassation complaint for consideration on the merits in the court session of the cassation instance?

Problem #289 316

The prosecutor of the region applied to the regional court with a cassation presentation in the interests of the disabled group I Chuvilev PG. The submission indicated that the district court had made a decision on the division of property left after the death of Chuvilev G.M. between his daughter Pamukhtina T.G. and son Chuvilev D.G.

Chuvilev P. G., who is the son of the deceased from his first marriage, did not participate in the consideration of the case, but learned about the decision after it came into force. Considering his rights violated, Chuvilev P. G. appealed to the regional prosecutor’s office.

Are the actions of the prosecutor correct? What are the conditions for the prosecutor’s appeal to the court of cassation?

Task No. 290 317

Fedorov appealed to the court to challenge the decision of the head of the correctional colony to impose a disciplinary sanction on him in the form of placement in a punishment cell, where he served seven days. The reason for applying such a penalty was the fact that on July 17, 2012, Fedorov was at his workplace in violation of the uniform, as a result of which he violated the internal rules of the colony.

By the decision of the district court of September 28, 2012, Fedorov’s application was satisfied, the decision of the head of the correctional colony was declared illegal.

Having considered the case on the appeal of the colony, the Judicial Collegium for Civil Cases of the regional court, by a ruling of November 9, 2012, canceled the decision of the district court and terminated the proceedings. The appeal ruling stated that Chapters 23 and 25 of the Code of Civil Procedure of the Russian Federation do not provide for the possibility of appealing to the court the decision of the head of the correctional colony to impose a disciplinary sanction on the convict. Because of this, the proceedings are subject to termination on the basis of par. 1 st. 220 Code of Civil Procedure of the Russian Federation.

Disagreeing with the decision of the judicial board, Fedorov decided to appeal it in cassation.

Acting as a representative of Fedorov, draw up a draft cassation complaint in this case.

Task No. 291 318

The judge of the Tambov Regional Court received a cassation complaint from the plaintiff Kuzmin, submitted to the expedition of the court on December 25, 2012, against the decision of the Oktyabrsky District Court of Tambov of May 14, 2012 and the decision of the Judicial Collegium for Civil Cases of the Tambov Regional Court of October 11, 2012 in a civil case on the claim of the organization “Union of Consumers for Worthy Rights” in defense of the rights of Kuzmin against OJSC “Trading Company” Korteks “” on the protection of consumer rights.

By the decision of the Oktyabrsky District Court of the city of Tambov, the stated requirements were denied. By the decision of the Judicial Collegium for Civil Cases of the Tambov Regional Court, the decision of the court was upheld.

In the cassation appeal, the plaintiff Kuzmin raised the issue of canceling the said court decisions, considering them illegal and unfounded. In particular, the cassation appeal contains an argument that the Union of Consumers for Worthy Rights, which applied to protect Kuzmin’s rights, was not notified about the court hearings in the first and appeal instances.

By a letter from the judge, the case was requested to the Tambov Regional

court.

It follows from the case file that Kuzmin, under a sale and purchase agreement dated February 15, 2009, purchased a 2008 Land Rover Discovery 3 car from the defendant. The cost of the car was 2 million rubles.

It follows from the act of acceptance and transfer dated March 28, 2009 that the buyer accepted the goods from the seller in a complete set according to the specification, the buyer has no claims to the quantity, quality and completeness of the goods.

The court of first instance also established repeated maintenance and repair of the plaintiff’s car, during which various parts of the chassis and suspension of the car were replaced. On July 7, 2010, the plaintiff applied to the defendant with a statement about the replacement of the car and a claim for damages in the amount of 456 thousand rubles related to the repair of the car.

The defendant repeatedly sent telegrams to the plaintiff with a demand to present the car for verification of its quality. The plaintiff did not comply with these requirements, the car was not presented.

The defendant repeatedly offered to replace the plaintiff’s car with another car, for which a sufficient number of cars were offered to choose from. The court also found that the plaintiff was operating the car, as evidenced by the speedometer readings.

On the basis of the court ruling, a comprehensive autotechnical and technological examination was carried out, as a result of which the court was presented with a conclusion containing an indication of the presence of manufacturing defects in the plaintiff’s car, with the exception of damage to the front mudguards. It follows from the conclusion that the defects (shortcomings) of the front and rear suspension, steering system, and air suspension control system of the car identified during the study were previously eliminated. Vehicle malfunctions are partly manufacturing faults, since they appeared during the warranty period. The experts concluded that the restoration of the plaintiff’s car was technically feasible and economically feasible. All identified and possibly existing malfunctions of the car are removable.

After examining and evaluating the evidence collected in the case, the court came to the conclusion that it was necessary to refuse to satisfy the stated requirements, since it had established that the plaintiff’s car had no significant shortcomings, and the identified shortcomings of the car were removable.

Claimant Kuzmin actually did not refuse to fulfill the contract, continuing to operate the car. In addition, the court took into account that the defendant did not have the opportunity to consider the validity of the plaintiff’s claim, since the plaintiff, according to the defendant’s requirements, did not present a car to identify the presence or absence of shortcomings.

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