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§ 1. Powers of court on self-checking realisation at a stage of final process and the form of its display

The court competence at a final process stage is not limited to powers on realisation of the direct and indirect control.

Besides the control powers which maintenance has been opened in the previous heads, the court at a final process stage is allocated by the right to carry out self-checking behind the actions, and also to assist the persons participating in final process at a final stage of legal proceedings.

Within the limits of the present paragraph we will stop on consideration of the maintenance of concept «court self-checking at a final process stage», then we will pass to research of forms of such powers of court.

First of all, we will stop on term research «court self-checking» in Russian and the legal literature.

In S.I.Ozhegova and N.J.Shvedovoj's explanatory dictionary self-checking is defined as «the control over the actions, acts» [144].

I.M.hare understands a compound and necessary part as court self-checking in system of elimination of miscarriages of justice [145].

E.G.Trishina defines court self-checking as «... Activity on elimination of a various sort of errors, the lacks admitted in the course of consideration and adjudication in essence» [146].

J.A.Zajtseva offers following concept of self-checking concerning first instance arbitration court: «.samokontrol first instance arbitration court is an ability of arbitration court of the first instance in the cases provided by the federal act to supervise the actions under own initiative, the initiative of the persons participating in business, the judicial police officer-executor or other bodies, the organisations executing the award of the first instance, prior to the beginning of proceeding, in its process or after adjudication in essence, for the purpose of revealing and elimination of the defects which are a consequence of abnormality in actions of the judge or in connection with change of conditions, results of that are fixed in special certificates (definitions, decisions) first instance arbitration court» [147].

Resulted above concept of self-checking of court are represented proved and not contradicting each other, however investment with powers on self-checking realisation exclusively the trial court is represented inexpedient with reference to final process as in practice the judicial certificates which have been taken out by the trial court not always come under to execution. I.V.hare noticed, that «self-checking possibility courts of all instances», however «now possess... It is realised mainly in trial court work that is predetermined by its place in justice system, volume of powers given to it» [148].

In the offered J.A.Zajtsevoj concept definition «judicial self-checking» obosnovanno it is noticed, that powers of court on self-checking realisation are realised by court on all instances, including at a final process stage.

Thus realisation by court of self-control powers is not in direct dependence on presence of the initiated final process, however correction of own errors by court at a final stage of legal proceedings possesses a number of specific signs.

Before to pass to definition of concept of self-checking of court to final process stages, we will address to remedial features of realisation of self-control powers of court at a final stage of legal proceedings.

First of all it is necessary to notice, that in final process by powers on self-checking realisation the court which has passed the decision which is coming under to enforcement, instead of the court which has given out the executive document is always allocated.

It is caused by that not always the court which has given out the court order, and the court which considered case in essence and has taken out the corresponding judicial certificate on which basis the court order stands out, is the same court of justice. Indicative the position YOU the Russian Federation that if the court of appeal instance considers case by the rules established for a legal investigation in arbitration court of the first instance in this case is, the court order stands out the trial court [149].analogichnym in the image the question and in system of vessels of the general jurisdiction [150] is authorised.

The following discriminating feature of powers of court on realisation of self-checking from other powers of court at a final process stage is court possibility independently to initiate self-checking.

J.A.Zajtseva obosnovanno notices, that among the subjects possessing the right to initiate self-control powers vessels, the court [151] acts.

On the given question also E.G.Trishinoj's position of is convincing that the stage of self-checking unlike other stages of legal proceedings can be initiated under the initiative only vessels without any actions of other participants of process [152].

At the same time, to agree with the thesis offered scientists of that self-checking represents itself as the independent facultative stage of the trial court which are distinct from a stage of appeal manufacture [153 [154], it is not obviously possible.

According to the author of dissertational research, the understanding of self-checking as an independent stage of legal proceedings is not absolutely correct. Self-checking are powers of court,

Regulated by the remedial legislation. Allocation

Self-checking along with other stages of legal proceedings, such as commencing a suit, preparation has put to proceeding, proceeding, final process, is inexpedient as self-checking can be initiated on any of the specified stages of legal proceedings, the structure of powers of the court which are starting with specificity of each of stages of legal proceedings will be excellent only.

It is necessary to notice, that in the legal literature court possibility independently to initiate the control do not allocate as an obligatory sign of self-control powers of court. So, for example, to powers of court on correction of own errors carry powers on an explanation of the judicial certificate, change of a way and an order

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Executions.

The word "self-checking" is the difficult word incorporating two roots: itself","control".

Itself"designates, that 1. Somebody personally makes action or tests it 2. By own strength, without the help or the requirement from the party. [155]

"Control" - check, and also constant supervision with a view of check or supervision [156].

Thus, a sign of obligatory presence at possibility court independently to initiate the control over the actions follows from close interpretation slovoobrazujushchih the meaning-bearing words forming the term "self-checking", as a textual word meaning

"Self-checking" assumes ability personally, without the requirement from the party to carry out check of the actions.

Confirming to the offered thesis it is enough to address to problems of self-control powers of court at a final process stage. In this case the court does not carry out the control over final process. The purpose of judicial self-checking is elimination by court of errors, incompleteness, the discrepancies admitted by it earlier in the course of a legal investigation.

In the legal literature with the integral sign of a miscarriage of justice allocate nedostizhenie or threat creation nedostizhenija the purposes of civil legal proceedings [157].

It is obvious, that in case of detection of a miscarriage of justice its immediate elimination is necessary, that in turn directly influences efficiency of final process.

If to deprive possibility court independently to initiate self-checking process, hardly it is possible to speak about operative elimination of miscarriages of justice.

In cases, when speech really goes about elimination of the errors admitted by court (instead of assistance rendering), presence at possibility court independently to initiate self-checking at legislative level should be obligatory.

Stated above allows to draw a conclusion that the integral discriminating sign of self-control powers of court is the possibility provided by the legislator independently to initiate self-checking.

It is necessary to pay attention also, that at a stage of final process the circle of the subjects allocated with the right to initiate realisation by court of powers on realisation of self-checking, will differ from other stages of legal proceedings.

So, proceeding from specificity of the legal relations developing in the course of enforcement, besides the court which has taken out the judgement on the merits of dispute, by the right to initiate self-control powers of court at a final process stage are allocated: the final process parties; the judicial police officer-executor; other bodies executing the decree, the organisations.

The court realises self-control powers by removal of corresponding definition about correction of the miscarriage of justice admitted in the judicial certificate on which basis the executive document has been given out.

The following criterion distinguishing the direct judicial review from self-checking, that circumstance is, that unlike the direct control, definition removal about correction of a miscarriage of justice does not influence directly a final process course. In this case the court does not carry out the control over final process.

The carried out analysis of self-control powers of court at a final stage of legal proceedings allows to reveal following basic criteria for concept definition «court self-checking at a final process stage»:

1. Errors and lacks are eliminated by that court which has taken out the judicial certificate which is coming under to enforcement;

2. The possibility of court fixed at legislative level independently to initiate self-checking;

3. Removal by court of the judicial certificate (definition) does not influence directly a course of executive actions.

Court self-checking at a final process stage is an activity of court on correction of errors and incompleteness elimination in the judicial certificate taken out by it on which basis final process is initiated, by removal corresponding

Definitions, under own initiative, the initiative of the parties

Final process, the judicial police officer-executor, other bodies executing the decree, the organisations.

In the legal literature dispute concerning remedial forms of self-control powers of court at a final process stage is led.

M.L.Skuratovsky to court activity on correction of lacks of the taken out judgement including at a stage of final process for its successful enforcement, carries removal by definition court about removal of the additional decision, on an explanation of the decision and correction opisok, typing errors and arithmetic errors [158].

V.M.Sherstjuk to powers of court in the final process, given for correction of the lacks of own decision revealed at execution, carries: a decision explanation, change of a way and an execution order, correction opisok and obvious arithmetic errors [159].

In the scientific doctrine court activity on delivery of the executive document on enforcement of judicial certificates is offered for carrying to an independent stage of supervising activity which on the legal nature concerns self-checking behind the taken out decisions [160].

D.J.Maleshin suggests to expand powers of court at a stage of excitation of execution of judicial decisions, having added the maintenance of the court order, having detailed the basic questions of execution of the taken out decision. Such approach, according to the scientist, allows to supervise process of execution of the judicial certificate as the further activity will be limited by instructions of the judge in the court order [161].

The requirements shown to the executive document, are regulated by Law article 13 «About final process». In addition, the obligatory requirement of the court order are the instructions of the substantive provision of the judicial certificate containing the requirement about putting on on the debtor of a duty on transfer vzyskatelju of money resources and other property or fulfilment in advantage vzyskatelja of certain actions or abstention from fulfilment of certain actions.

D.J.Maleshin on delivery of the court order as a matter of fact reduces activity of vessels to copying of the maintenance of a separate part of the taken out decision. The court order, in its opinion, is the simple technical certificate. The scientist calls into question necessity of an existing order of delivery by vessels of court orders, as «... If not to change the current legislation about the maintenance of the court order in general there is a question on inexpediency of existence of this institute as there is no necessity for simple copying of the maintenance of the taken out decision.» [162].

V.F.Kuznetsov suggests to be limited on some categories of affairs to delivery of a copy of the judicial certificate which inherently will already be the executive document [163].

Meanwhile, such position has found the reflexion in the current legislation. So, on sense of point 2 of article 121 GPK the Russian Federation the injunction is simultaneously both the judicial certificate and the executive document and is carried out in an order established for execution of judicial decisions.

Similar positions contain in agrarian and industrial complex of the Russian Federation (article 229.1 point 2) and KAS the Russian Federation (article 123.1 point 3).

The injunction is constituted on the special form in duplicate which subscribe the judge. One copy of the injunction remains in court manufacture. For the debtor the injunction copy (point 3 of article 127 GPK the Russian Federation) is made.

However such simplified order of delivery of court orders in mandative manufacture is caused by character of the declared requirements, the injunction is taken out only in the event that between the parties there is no issue in law and only under the requirements listed in norms 122 GPK Russian Federation, 229.2 agrarian and industrial complexes of the Russian Federation, 17.1 KAS the Russian Federation. The specified list is settling, and in case of occurrence of objections of the debtor concerning its execution the judge cancels the injunction, and such requirements can be shown as the adversary proceeding (article 129 GPK the Russian Federation, 123.7 KAS the Russian Federation, 229.5 agrarian and industrial complexes of the Russian Federation).

Such order of delivery of court orders in other kinds of manufacture (the claim; the special; the correspondence; the simplified; manufacture on the affairs arising from public legal relations) it is not admissible. Copies of judgements are sent to the persons participating in business, not later than five days from the date of decision-making (article 177 of agrarian and industrial complex of the Russian Federation, 214 GPK the Russian Federation), or three days after court decision-making in the definitive form (article 182 KAS the Russian Federation). Giving of copies of decrees instead of the court order will lead to mass excitation of final processes on the affairs which decisions have not entered validity.

The presentation of decrees with a mark about its introduction into validity also will not be a sufficient condition for its presentation to execution instead of the court order as in itself such mark of court in a decision copy not always guarantees its becoming res judicata. Court term for the appeal appeal can be restored, in that case the decree enters validity after its appeal.

If the court order which has been given out before becoming res judicata of the judicial certificate, owing to the current legislation admits insignificant and responds the judge who has taken out the judicial certificate (articles 319 of agrarian and industrial complex of the Russian Federation, 428 GPK the Russian Federation, 353 KAS the Russian Federation) such norms with reference to a copy of a judgement with a mark about its introduction into validity into the current legislation it is not provided.

Besides, the court order stands out on special forms, the form, an order of manufacturing, the account, storages and which destructions it is approved by the Governmental order [164].

Thus, the court order serves as additional powerful way of protection of the rights of the debtor, including in the conditions of growth of criminal conditions in economy sphere (a fake of decrees) as according to the Order of the Ministry of Finance of the Russian Federation the form of the court order is protected polygraphic production of level "In", representing the complete set from four sheets fastened among themselves, having an identical series and number on each sheet of the complete set [165].

As to expansion of powers of court on delivery of the court order and detailed elaboration of mechanisms of execution by instructions of ways and an execution order; times of performance; property signs (if collecting addresses on property) [166] I believe court investment with such powers with the inexpedient.

First, the designation of these signs in the court order allows to speak about control functions of court at a stage of final process before its excitation. At the same time the expediency of such control is called in question. Decree execution in each concrete case has especially individual character and can vary in the course of execution.

Secondly, considering, that the decree first of all should be ispolnimo, in the substantive provision all should contain necessary for these data, including a way and an execution order, property signs. In case of a decision ambiguity including the substantive provision containing in the court order, the persons participating in business, the bailiff the executor has the right to address in the court, made the decision, with the statement for its explanation.

Thirdly, as to times of performance times of performance of the requirements containing in the executive document, are regulated by the law on final process and under the general rule should be executed in time, not exceeding two months from the date of final process excitation (article 36 FZ «About final process»). If the instalments or an execution delay have been given the debtor before delivery of the executive document in the executive document the instructions contain on the time of performance of the requirements containing in the executive document begins with what time (article 12 FZ «About final process»). Duplication in the court order of the terms already provided by the legislation, is, according to the author, a useless and excessive duty of court.

Thus, remedial activity of court on delivery of the court order to control functions of court does not concern, as delivery of the court order represents the juridical fact which is one of the bases for excitation of final process and actions on self-checking cannot concern.

The carried out analysis of self-control powers of court and their signs within the limits of the present scientific research allows to allocate following remedial forms of these powers of court for final process stages: correction opisok, typing errors and obvious arithmetic errors in the decree; removal of the additional decree.

1.1. Correction opisok, typing errors and obvious arithmetic errors in the judicial certificate, executory

In the legal literature not enough attention is given a question of application of institute of correction opisok, typing errors and obvious arithmetic errors in the judicial certificate at a final process stage.

It is necessary to notice, that is frequent in the concept literature "opiska" and "typing error" are used as synonyms. So, A.V.Tjutjunnikov under opiskami (typing errors) suggests to understand the distortions admitted at a writing of separate words, expressions, names, patronymics and surnames, names of legal bodies [167].

N.A.Baturin, differentiating concepts "opiska" and "typing error", obosnovanno notices, that "typing error" correction is admissible in case of a writing of the text of the decision in printing in this connection, considering, that all judicial certificates basically are made by means of means, would be more correct to speak about the typing errors admitted in them, instead of opiskah [168]. At the same time, the term "typing error" is not used at all in article 200 GPK the Russian Federation. The concept "opiska" on sense of article 200 GPK the Russian Federation has wider value in comparison with the same term in a context of articles 184 KAS the Russian Federation, 179 agrarian and industrial complexes of the Russian Federation. In spite of the fact that with such position of the legislator to agree difficultly, an exception of the specified rules of law of concept "opiska" it is found premature as in the legislation does not contain compulsory condition of manufacturing of the judicial certificate in a typewritten kind.

Not going deep into scientific discussion concerning parities of concepts "opiska", "typing error" and «an obvious arithmetic error», is enough to result the definitions of the specified concepts offered in the legal literature which, according to the author, most full open their maintenance.

Under opiskoj M.L.Skuratovsky understands a wrong writing in the decision of a word, the figures, having any value for the persons participating in business, or for the bodies executing the decision [169].

Typing error - the same error admitted at manufacturing by court of the decision in the typewritten form by means of means [170].

Arithmetic error the error admitted at calculation which has obvious character admits and it is found out at following calculation at the same initial data [171].

The question on possibility and order of application of considered institute at a final stage of legal proceedings has debatable character, both in the scientific doctrine, and in

pravoprimenitelnoj to practice in this connection it is expedient to stop in more details on the problems arising during realisation by court of self-control powers by entering of correction as they have the important practical and theoretical value.

As the most traditional in the doctrine the position according to which correction opisok, typing errors and obvious arithmetic errors in the judicial certificate is admissible at any stage of legal proceedings including at a stage of final process [172] acts.

At the same time, V.V. Jarkov in the article by article comment to KAS notices the Russian Federation, that correction procedure is limited by a time interval and can be initiated only to the introduction of the decree into validity [173].

However hardly probable period restriction during which the petition for correction opisok can be declared, typing errors and arithmetic errors, the moment of becoming res judicata of the judicial certificate which have discrepancies and coming under to correction, it is possible to consider proved.

First of all it is necessary to address to problems of considered institute. Application of the specified institute is directed on correction

Admitted by court at manufacturing of the judicial certificate of discrepancies which in turn can interfere with its execution. Thus correction opisok, typing errors, obvious arithmetic errors does not attract change of essence of the made decision (item 179 of agrarian and industrial complex of the Russian Federation).

At legislative level also does not contain any restrictions concerning the top limit of a time interval when self-checking of court in the form of correction opisok can be initiated, errors, obvious arithmetic errors (as, for example, in case of removal of the additional decision: item 201 GPK the Russian Federation, 178 agrarian and industrial complexes of the Russian Federation, 183 KAS the Russian Federation). Besides, article 184 KAS the Russian Federation, on the contrary, supposes entering of corrections into the judicial certificate without dependence from, whether the judicial certificate has entered validity.

The offered V.V. Jarkovym the approach to possibility to initiate correction procedure it is exclusive to the introduction of the judicial certificate into validity at all will deprive of possibility of application of the specified institute at a final process stage. Besides, such limited understanding of terms of the reference with the statement for correction opiski, typing errors, an arithmetic error and at all will deprive possibility court independently to correct errors in the judicial certificate after its introduction into validity. The circumstances set forth above will promote a final process tightening, and also to interfere with realisation of basic principles of final process.

At the same time, editions of articles 184 KAS the Russian Federation, 200 GPK the Russian Federation limit a circle of the subjects possessing the right to address in court with the corresponding statement for correction opiski, a typing error and an arithmetic error that interferes with realisation of the specified institute at a final process stage. More successfully, according to the author of the dissertational research, the specified question is solved in arbitration remedial legislation, where along with court, the persons participating in business, among the subjects, capable to address in court with the corresponding statement,

Other bodies executing the award, the organisations (a part of 2 articles 179 of agrarian and industrial complex of the Russian Federation) are called the judicial police officer-executor.

Absolutely differently the designated problems dare in pravoprimenitelnoj to practice. So, in the developed judiciary practice in general jurisdiction vessels the reference by the judicial police officer - the executor in court with the statement for correction opiski and an obvious arithmetic error on the basis of article 200 GPK the Russian Federation is supposed.

Such conclusion has found reflexion in definition of the Frunze regional court of of Vladivostok from 06.09.2013, left without change by full court definition on civil cases of Seaside regional court from 11.12.2013 by which on the basis of the statement of the judicial police officer-executor it is corrected opiska in the decision which has entered validity of the Frunze regional court of of Vladivostok from 12.05.20111.

Besides presence at the judicial police officer-executor of possibility of correction opisok or the obvious arithmetic errors, provided article 14 FZ «About final process», cannot compensate to the full a blank in the norms regulating an order of correction opisok, typing errors and obvious arithmetic errors general jurisdiction vessels as in that case it will be a question of correction of errors in the decisions taken out by the judicial police officer-executor within the limits of final process. In this case self-control powers of the judicial police officer-executor, but not vessels are realised.

At the same time, concerning application by vessels of institute of correction opisok at a final process stage there are some more unresolved disputable moments. So, articles 200 GPK the Russian Federation, 179 agrarian and industrial complexes of the Russian Federation, 184 KAS the Russian Federations suppose correction opisok, typing errors and obvious arithmetic errors only in the decree. It is obvious, that miscarriages of justice can be made in all without an exception judicial certificates and on all degrees of jurisdiction.

Definition of Seaside regional court from 11.12.2013 on business № 33-10944//Union of Right Forces ConsultantPlus.

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Concerning application of the specified institute by vessels of appeal instance position VS the Russian Federation that appeal court, being guided by a part of 2 articles 200 GPK the Russian Federation, have the right under the initiative or under the statement of the persons participating in business will be indicative, to correct admitted in appeal definition opiski or obvious arithmetic errors [174].

The judiciary practice analysis allows to draw a conclusion, that in system of arbitration courts (179 agrarian and industrial complexes of the Russian Federation) and vessels of the general jurisdiction concerning consideration of administrative affairs (184 KAS the Russian Federation) the specified question is authorised similarly [175].

At the same time, in the legal literature till now there is opened a question on application of the specified norms by analogy when correction is come under by the miscarriages of justice admitted in definitions, executory, and injunctions.

D.I.Kovtkov notices, that «the question on correction opisok and obvious arithmetic errors in the injunction should be considered in session of the court by analogy to correction opisok and obvious arithmetic errors in the decree» [176].

N.A.Baturin fairly specifies in inadmissibility of such approach, referring that correction procedure opisok, and obvious arithmetic errors in injunctions becomes more difficult than typing errors, than procedure of removal of the injunction [177].

Judiciary practice goes on a way of application of article 200 GPK the Russian Federation by analogy in case of entering of corrections into the injunction. So,

Definition of the Vyborg city court of Leningrad region from 24.10.2013, the definition of the full court left without change on civil cases of the Leningrad provincial court from 21.11.2013, makes corrections to the injunction of the Vyborg city court Leningrad области1.

At the same time, the author of dissertational research calls in question necessity of carrying out of session of the court in case of correction opisok, typing errors and obvious arithmetic errors not only in injunctions, but also judicial certificates as a whole.

In the current legislation the various order of correction opisok, typing errors and obvious arithmetic errors in the decree for arbitration courts and general jurisdiction vessels is provided. So, owing to the current legislation in vessels of the general jurisdiction the question on correction opisok, typing errors and obvious arithmetic errors in the decree is considered in session of the court with the obligatory notice of the persons participating in business, on time and a place of session of the court (point 2 of article 200 GPK the Russian Federation, point 2 of article 184 KAS the Russian Federation). In agrarian and industrial complex of the Russian Federation of requirements about the obligatory notice of participants of process on time and a place of session of the court it is not provided, ten-day term for legal proceeding execution (point 4 of article 179 of agrarian and industrial complex of the Russian Federation) however is established.

Positivity of the rule of law in arbitral procedure consists in efficiency of consideration of the corresponding statement as for the permission of the specified question ten-day term of removal of corresponding definition from the date of petition receipt is provided. At such approach the permission of a question on correction of the judicial certificate will not lead to an artificial tightening of final process.

At the same time, in pravoprimenitelnoj to practice quite often there are the collisions connected with necessity of conducting of the report of session of the court.

From close interpretation of article 179 of agrarian and industrial complex of the Russian Federation carrying out of session of the court is not required, as consequence, it is authorised to take out

Corresponding definitions without the report of session of the court. On the other hand, consideration of the statement of the person participating in business, the judicial police officer-executor, others executing the award of body, the organisation about correction of a typing error, an obvious arithmetic error in the judicial certificate, without dependence from its form, is legal proceeding that means obligatory conducting the report of session of the court.

Definition about correction opisok, typing errors, arithmetic errors or about refusal in correction opisok, typing errors and arithmetic errors in the decree can be appealed (point 4 of article 179 of agrarian and industrial complex of the Russian Federation).

According to point 6.1. Instructions on office-work in arbitration courts of the Russian Federation (approved by the Decision of Plenum YOU the Russian Federation from 25.12.2013 № 100) during each session of the court of arbitration court, and also at fulfilment of separate legal proceedings out of session of the court is led audiorecording with use of means of an audio record (or in the presence of technical possibility - videorecording of sessions of the court) and is executed the process-verbal in writing, thus according to a part of 2 articles 155 of agrarian and industrial complex of the Russian Federation the report is additional means of fixation of data about a course of session of the court. The material carrier of an audio record (videorecording) of session of the court joins business materials, in the presence of technical possibility the unloading of the audioreport (video report) in KAD in a mode of the limited access [178] is carried out.

In that case there is a question, whether absence of the report of session of the court will be the unconditional basis of cancellation of such definition? The specified question is actual as the subsequent cancellation of the court ruling can entail a tightening of process of enforcement.

For the answer to the brought attention to the question above it is necessary to address to judiciary practice. The decision of the Ninth arbitration appeal court on business № А40-117426/14 cancels from 25.02.2015 definition of Arbitration court of a city of Moscow from 24.11.2014 about typing error correction referring to article 155 of agrarian and industrial complex of the Russian Federation as in business materials there is no report of session of the court, that owing to point 6 of a part 4 named articles are the unconditional basis for cancellation of the judicial certificate of arbitration court of the first instance [179].

The judiciary practice analysis allows to draw a conclusion that absence of the report of session of the court about correction or about refusal in correction opiski, typing errors, an arithmetic error in the decree is remedial infringement and in any case the unconditional basis for court ruling cancellation. Thus, presence of the report of session of the court concerning correction opisok, typing errors and obvious arithmetic errors is obligatory.

In GPK the Russian Federation and KAS the Russian Federation the obligatory notice of the persons participating in business, on time and a place of session of the court for consideration of a similar sort of questions is provided.

At the same time, the expediency of the notice of all persons participating in business, at the permission of a question on correction of miscarriages of justice in the decree is called into question. The notice of the persons participating in business, as a rule, is made by a direction of the summons with the assurance of receipt. For the appropriate notice through mail service means certain time is necessary. Presence of such condition in itself does not allow to resolve a question on correction opiski, a typing error and an arithmetic error in the decree in the reduced terms that leads to a tightening of process of execution of the judicial certificate. Besides, removal by definition court about correction opiski, a typing error or an arithmetic error does not change an essence of the judicial certificate, executory as the miscarriage of justice of the technical plan is corrected. And presence of the persons participating in business, at the permission of the specified question is faster a facultative condition as all conclusions of court will be stated in the reasoning of definition which can be appealed.

The similar legal position is stated in the decision of Plenum VS the Russian Federation from 3.10.2017 № 30 «About entering into the State Duma of Federal assembly of the Russian Federation of the draught federal law« About modification in GPK the Russian Federation, agrarian and industrial complex of the Russian Federation, KAS the Russian Federation and separate acts of the Russian Federation »where in GPK correction questions opisok and arithmetic errors, decree explanations it is offered to consider the Russian Federation and agrarian and industrial complex of the Russian Federation in ten-day term from the date of receipt of a petition without carrying out of session of the court and without the notice of the persons participating in business. [180]

Generalising the above-stated, it is necessary to notice, that an order of consideration of statements for correction opisok, typing errors and the obvious arithmetic errors, 179 agrarian and industrial complexes of the Russian Federation regulated by norm, see to the author of dissertational research by more successful, than an order of consideration of such references, provided by norms 200 GPK the Russian Federation and 184 KAS the Russian Federation as at a final process stage efficiency of execution of the judicial certificate is primary that promotes realisation of principles of final process and legal proceedings as a whole.

At the same time, the correction order opisok, typing errors and arithmetic errors in the arbitration remedial legislation is regulated by one rule of procedure in aggregate with order of an explanation of the decree. However the specified institutes differ by the legal nature and have a various target orientation. Besides, legal regulation of considered institutes converges only in procedure of removal of corresponding definition by court, in the rest the order of the permission of the specified questions does not coincide. So, for example, the condition limiting removal of corresponding definition by term of a carrying out of the decision, extends only on institute of an explanation of the decree. Various also the subject structure possessing the right to initiate this or that procedure also is.

Summing up stated, it is represented logical to allocate in the independent rule of procedure a regulation of institute of correction opisok, typing errors and arithmetic errors in the arbitration remedial legislation, following editions of the norms regulating an order of correction opisok, typing errors and obvious arithmetic errors, in kodifitsirovannyh written pleadings also are offered.

Article 179.1 of agrarian and industrial complex of the Russian Federation «Correction opisok, typing errors and arithmetic errors in the judicial certificate

1. After the announcement of the judicial certificate with which the legal investigation in essence comes to the end, the court, made the decision on business, has not the right to cancel or change it.

2. The arbitration court which has accepted the judicial certificate, under the statement of the person participating in business, the judicial police officer-executor, others

Executing or under the initiative typing errors and arithmetic errors without change of its maintenance have the right to correct the judicial certificate of arbitration court of body, the organisation admitted in it opiski.

3. Concerning correction opisok, typing errors, arithmetic errors the arbitration court takes out definition in ten-day term from the date of receipt of a corresponding petition which can be appealed ».

Article 200 GPK the Russian Federation «Correction opisok, typing errors and obvious arithmetic errors in the judicial certificate

1. After the announcement of the judicial certificate with which the legal investigation in essence comes to the end, the court, made the decision on business, has not the right to cancel or change it.

2. The court can under the initiative or under the statement of the persons participating in business, the judicial police officer-executor, others executing the judicial certificate of body, the organisations to correct admitted in the judicial certificate opiski, typing errors or obvious arithmetic errors irrespective of, whether it has entered validity.

3. Concerning correction opisok, typing errors, arithmetic errors the court takes out definition in ten-day term from the date of receipt of a corresponding petition. On the court ruling about entering of corrections into the judicial certificate the private complaint »can be submitted.

Article 184 KAS the Russian Federation: «Correction opisok, typing errors and obvious arithmetic errors in the judicial certificate

1. After the announcement of the judicial certificate on administrative business with which the legal investigation in essence comes to the end, the court, made the decision on business, has not the right to cancel or change it.

2. The court can under the initiative or under the statement of the persons participating in business, the judicial police officer-executor, others executing the judicial certificate of body, the organisations to correct admitted in the judicial certificate opiski, typing errors or obvious arithmetic errors irrespective of, whether it has entered validity.

3. Concerning correction opisok, typing errors, arithmetic errors the court takes out definition in ten-day term from the date of receipt of a corresponding petition. On the court ruling about entering of corrections into the judicial certificate the private complaint »can be submitted.

1.2. Removal of the additional decision

Removal by court of the additional decision represents one of forms of powers of court on self-checking realisation.

Acceptance of the additional decision in the legal literature is understood as a way of change of the declared decision directed exclusively on the permission of questions not solved in session of the court at obligatory leaving without changes of those positions of the judicial certificate on which the decision was accepted and is declared [181].

Removal by court of the additional decision inherently assumes the activity of the court directed on correction of a miscarriage of justice in the judicial certificate taken out by it by elimination of its incompleteness [182].

Application of the given institute probably in following cases:

1) under any requirement on which the persons participating in business, represented proofs and gave an explanation, the decree was not accepted;

2) the court, having resolved a question on the right, has not specified the size of the award, the property which is coming under to transfer, or actions which the respondent is obliged to make;

3) the court does not resolve a question on court costs.

The given list is settling and to extensive interpretation does not come under.

Not going deep into scientific discussion concerning the legal nature of the considered legal institution, we will note the most important questions arising in practice of application by vessels of institute of removal of the additional decision at a final stage of legal proceedings.

Actual now there is a problem of possibility of elimination of deficiency of the judicial certificate by removal of the additional decision at a final process stage. The brought attention to the question in the scientific doctrine practically is not investigated.

According to article 178 of agrarian and industrial complex of the Russian Federation and 183 KAS the Russian Federation removal of the additional decision is probably exclusive before becoming res judicata of the basic decree. Article 201 GPK the Russian Federation supposes initiation of a question on acceptance of the additional decision before becoming res judicata of the basic decree.

Proceeding from close interpretation of the specified rules of law, about inadmissibility of application with vessels of institute of removal of the additional decision the natural conclusion arises upon final process stages, as enforcement of the judicial certificate probably exclusively after its becoming res judicata.

In support of I.A.Hasanshin's specified conclusion pays attention to impossibility of delivery of two and more court orders on the basis of one judgement [183].

At the same time, in the legal literature there is an opposite point of view according to which removal of the additional decision is permitted on all without an exception legal proceedings stages including at a stage of final process [184]. Nevertheless, in the doctrine the attention that restriction of acceptance of the additional decision by the moment of the introduction of the judicial certificate in validity leads to some neopredelennostjam in pravoprimenitelnoj to practice [185] is paid.

The author of dissertational research agrees with the offered thesis, allowing application of considered institute in the initiated final process on following bases.

First of all it is necessary to notice, that in the legislation there are no direct restrictions concerning impossibility of application of institute of removal of the additional decision at a final process stage, in remedial kodifitsirovannyh certificates restrictions of a time interval in which limits the specified norm - to the introduction of the decree into validity can be applied that is not always connected with the final process beginning contain only.

In the article by article comment to agrarian and industrial complex of the Russian Federation P.V.Krasheninnikov obosnovanno refers to unsuccessful edition of article 178 of agrarian and industrial complex of the Russian Federation according to which the additional decision can be taken out to the introduction of the basic decision into validity as such restriction of terms breaks the rights of participants of arbitral procedure to access to court. More successful to it the formulation of article 201 GPK the Russian Federation which supposes a filing of application about removal of the additional decision to the introduction of the basic decision into validity sees. Thus, the additional decision can be actually taken out, when the decision has already entered validity [186].

Considering that fact, that removal of the additional decision is always carried out in session of the court with the obligatory notice of the persons participating in business, it is represented, that the additional decision can be actually accepted court and after the introduction of the decision into validity.

Besides, the majority of scientists-protsessualistov specify in possibility of restoration of the term dropped under the reasonable excuse on a filing of application about removal of the additional decision [187].

At the same time, judiciary practice on the given question develops a little differently.

So, the developed practice of arbitration courts supposes

Restoration of the time limit dropped under reasonable excuses on the basis of point 2 of article 117 of agrarian and industrial complex of the Russian Federation on a filing of application about removal by court of the additional decision if have not expired maximum permissible terms for restoration [188].

In system of vessels of the general jurisdiction there is no developed practice on consideration of the specified question. So, by definition of Jashaltinsky regional court of Republic Kalmykia from 21.11.2011 it is given up in satisfaction of the petition for restoration of the dropped time limit on a filing of application about acceptance of the additional decision referring to absence of respectfulness of the reasons of the admission of the time limit. Cassation definition of the full court on civil cases of the Supreme Court of Republic Kalmykia from 27.12.2011, taken out by results of check of legality of the taken out definition, changes the reasoning of definition and is specified, that on sense of article 201 GPK the Russian Federation term for removal of the additional decision is limiting and irrespective of respectfulness of the reasons of its admission after the introduction of the decree into validity to restoration does not come under [189].

Such conclusion proves to be true also a legal position of the Constitutional Court of the Russian Federation from 26.05.2016 № 1070 about absence of possibility of restoration of term on a filing of application about acceptance of the additional decree as such statement owing to a part of second article 201 GPK the Russian Federation can be submitted only before becoming res judicata of the decree [190].

At the same time, VS the Russian Federation has made explanations about an admissibility of removal of additional appeal definition in session of the court with the obligatory notice of the persons participating in business [191].

In that case there is a blank in the remedial legislation, expressed that in case of removal by the trial court of the decision which are coming under to immediate execution (for example, collecting of the alimony), removal of the additional decision is inadmissible. Correction of a miscarriage of justice will be made exclusively in the higher degree of jurisdiction. Thus the legislation provides possibility of removal of additional appeal definition by court of the appeal instance which have considered case by rules of manufacture in the trial court which enters validity from the moment of its announcement.

In jurisprudence there is also other point of view on the specified question. If to assume, that the terms provided by the remedial legislation concerning removal of the additional decision, are inapplicable to cases of giving of statements for removal of the additional judicial certificate when originally taken out judicial certificate becomes effective immediately in that case the right to a reference to the court with the corresponding petition and will not be limited at all on time [192].

The understanding of the term provided by the legislation for removal of the additional decision, in quality presekatelnogo is represented

Inadmissible as discriminating the laws of persons, participating in business, on access to justice, and also limiting powers of the trial court on self-checking realisation at a final process stage.

Despite presence of the listed restrictions, concerning removal of the additional decision, stated above allows to agree with opinion protsessualistov that removal of the additional decision nevertheless is possible at a final process stage. At the same time, application of considered institute at a final stage of legal proceedings is inconvenient.

So, by definition of May Day regional court of a city of Omsk from 12.11.2015, left without change by the full court on civil cases of the Omsk provincial court from 24.12.2015, it is given up in satisfaction of statement N.N.S. About removal of the additional decision, referring to a part of 2 articles 201 GPK the Russian Federation as the statement has arrived in court after becoming res judicata of the basic decision [193].

Such position of vessels, according to the author of dissertational research, is deprived sufficient lawful basises. In considered case N.N.S. Has sent the statement for removal of the additional decision by mail before decree becoming res judicata about what it is specified in the text of appeal definition. Operating edition of item 201 GPK the Russian Federation does not contain the restrictions obliging applicants to provide receipt of the petition for removal of the additional decision in court to the introduction of the basic decision in validity. With reference to the given case it is necessary to be guided by article 108 GPK the Russian Federation according to which the statement is considered submitted without time limit infringement if it has been handed over in the organisation of a mail service till twenty four o'clock last day term. Hence, N.N.S. Set of the conditions provided by article 201 GPK the Russian Federation in this connection the statement for removal of the additional decision came under to satisfaction in case of its validity is observed.

Besides, the full court specifies in possibility of the claimant to address in court with the separate statement of claim in separate manufacture about collecting штрафа1.

The similar legal position is reflected and in judiciary practice of arbitration courts. The federal arbitration court of the Moscow district in the decision notices from 14.10.2009, that refusal in removal of the additional decision does not interfere with the reference with the independent letters rogatory about collecting of percent for using another's money resources [194 [195].

In that case M.A.Erohovoj's point of view of is worthy that the subject and the basis of recovery suits of percent for using another's money resources coincide with a subject and the basis of already taken place litigation about the debt collection and possible sanctions. Further the scientist referring to article 150 of agrarian and industrial complex of the Russian Federation specifies, that manufacture under such claims falls under the basis for phase-out on business in connection with the available decision between the same persons about the same subject [196].

The explanations stated in the Decision of Plenum VS the Russian Federation from 24.03.2016 № 7 «About application by vessels of some positions of the Civil code of the Russian Federation about a liability of infringement of obligations» where it is specified, that percent for using another's money resources come under to payment irrespective of the basis of occurrence of the obligation, clear up concerning the designated problem. Nevertheless, the existing approach forcing applicants to a repeated reference to the court with requirements, earlier declared by the claimant within the limits of already considered cases and ignored by court, has a number of rather essential lacks.

Certainly, applicants are not deprived the right to address with the reclaiming petition on the judicial certificate, in turn, not consideration by court of a part of requirements will be the basis for its cancellation. At the same time, hardly it is possible to consider such way of elimination of incompleteness of the judicial certificate as the most successful both for the claimant, and for judicial authority bodies. The admission of term for a filing of application about removal of the additional decision assumes also the term admission on the appeal appeal. The applicant in any case will be forced to restore time limits for reclaiming petition giving to take advantage in such a way protection of the broken right.

Also it is impossible to consider rational a variant of giving of independent requirements offered in judiciary practice in a case not permissions as court of a part of requirements and the further refusal of removal of the additional decision because of the term admission.

First, the applicant will be forced to bear the additional expenses connected with initiation of new independent business while the claimant had already been paid all necessary court costs at giving of initial claims.

Secondly, the offered procedure only generates excessive red tape and creates additional essential loading on courts. So, courts will be forced to get new manufacture after acceptance of the corresponding statement, to spend on it preparation for proceeding, in some cases to spend preliminary session of the court. With a view of remedial economy it would be more expedient to give to vessels possibility to resolve such requirements within the limits of already considered cases, without dependence from, whether the initial has entered

The judicial certificate in validity and whether is led on it enforcement.

Thirdly, such approach attracts infringement of the rights of participants of process on timely proceeding, and also considerably increases the period of execution of obligations. So, if under the general rule in vessels of the general jurisdiction of business are considered and resolved by vessels before the expiration of two months from the date of receipt of the statement of claim in court (articles 141 KAS the Russian Federation, 154 GPK the Russian Federation) in business arbitration courts can be considered about three months (article 152 of agrarian and industrial complex of the Russian Federation). The norms of the remedial legislation regulating an order of removal of the additional decision, and at all do not contain mentions of terms in which limits legal proceeding can be made. However giving of the corresponding statement for removal of the additional decision in itself does not allow court to fall outside the limits reasonable term of legal proceedings.

Besides, execution of the basic judicial certificate quite often is in direct dependence on removal of the additional decree.

So, in decision FAS of the Moscow district from 25.07.2002 it is specified in impossibility of an explanation of the decree if the specified question has not been reflected in a judgement. Thus possibility of the reference with the statement for removal of the additional decision as article 138 of agrarian and industrial complex of the Russian Federation is lost, as such statement moves to the introduction of the decision into validity. [197] specified circumstances in aggregate do impossible execution of the basic decree in which the initial sale price of the put in pawn property is not specified.

From the stated follows, that in case of the initiated final process removal of the additional decision is inadmissible owing to the direct instruction of the remedial legislation, that in

Certain cases does impossible execution of the basic decree concerning a part of the requirements considered in essence.

The decree should besides compulsion, irrefutabilities to possess property of feasibility, under the maintenance and the form to correspond to law requirements. [198]

So, leaving without change the additional award of Republic Buryatiya from 02.04.2009, the full court specifies, that the question on cost of the awarded property can matter in case of impossibility to execute the decree by transfer of disputable property in connection with its absence at the debtor. [199]

From the resulted examples from judiciary practice follows, that necessity of removal of the additional decision can arise at a stage of the initiated final process when execution of the basic judicial certificate becomes impossible.

In spite of the fact that in that case removal of the additional decision is actually capable to influence final process procedure, the court does not carry out the control over final process as the specified requirements should be considered court by initial consideration of requirements. Necessity of removal of the additional decision is always connected with presence in the decree of the miscarriage of justice expressed in its incompleteness. Owing to main principles of legal proceedings the miscarriage of justice should be eliminated as much as possible operatively.

Besides, owing to articles 39, 40 FZ «About final process» removal of the additional decision is not the basis of stay of final process from what follows, that removal of the additional decision can be made without damage to a final process order.

It is necessary to notice, that in judiciary practice the alternative variant of elimination of incompleteness of the judicial certificate in cases when the court does not solve a question on court costs is offered.

The full court on civil cases VS the Russian Federation has specified, that «the permission of a question on distribution of court costs on business, the decision on which has entered validity, should be made by the trial court in the form of definition, instead of the additional decision» [200 [201].

The federal arbitration court of the Moscow district notices, that «the arbitration court has the right to consider the statement for distribution of court costs and after decree becoming res judicata, but not by removal of the additional decision on business, and having accepted on the statement separate definition according to article 112 of agrarian and industrial complex of the Russian Federation».

VS the Russian Federation also allows the interested person to address in court with the statement for the apportionment of court costs, arisen, including, and at a final process stage. [202]

On legal nature the institute of distribution of court costs is similar to institute of removal of the additional decision on distribution of court costs. The form of the judicial certificate will be excellent only.

It is represented, that definition about distribution of court costs is taken out on the basis of the party statement when corresponding requirements have not been declared simultaneously with the claim, and court at awarding judgement the specified question have not been resolved.

The developed judiciary practice under the permission of questions on distribution of court costs confutes I.A.Hasanshina's argument concerning impossibility of delivery of two and more court orders on the basis of one judgement [203 [204].

Proceeding from stated, considering positive practice of the permission by vessels of questions on court costs within the limits of the basic business, it is represented admissible to review expediency of the existing order, allowing to pass the additional decision exclusively to the introduction of the basic decision into validity.

Despite all importance of institute of removal of the additional decision, restriction of terms of the reference with the corresponding statement the moment of the introduction of the basic decision in validity does its application at a final process stage illusory.

I.A.Prihodko, criticising fixed in the remedial

The legislation the order connecting a filing of application about removal of the additional decision (GPK) or removal such decision (agrarian and industrial complex) with introduction of the decision in validity, suggests to establish an order similar to volume which is provided for giving of cases to move for new trial of judicial certificates on again opened circumstances: the corresponding statement can be submitted within three months from the date of opening of corresponding circumstances (agrarian and industrial complex article 312, 394 GPK).

I.A.Prihodko's remarks concerning the provided

Remedial order of removal of the additional decision see to the author of dissertational research given reason enough. However remains not clear, since what moment it is necessary to estimate three-monthly term of giving of the petition for removal of the additional decision: from the moment of announcement of the substantive provision of the decision, from the moment of manufacturing motivirovannogo decisions or from the moment of its reception? Besides, the miscarriage of justice expressed in incompleteness of the judicial certificate, can be revealed and after three-monthly term.

In the present dissertational research at definition of terms in which limits removal of the additional decision is admissible, it is offered to establish term by analogy to the term established by the arbitration remedial legislation for an explanation of the decision (179 agrarian and industrial complexes of the Russian Federation): before reduction of the basic decree in execution and within the term established by the federal legislation, for a presentation of the court order to execution.

The offered approach to delimitation of term for removal of the additional decision speaks the following.

First, removal by court of the additional decision in the initiated final process will not entail any negative consequences in procedure and term of enforcement of the basic decision. Only new requirements, executory within the limits of already existing final process will be added.

Thus removal of the additional decision on already complete final process is inexpedient as in overwhelming majority of cases will testify to misuse of right from the applicant.

Secondly, such order of removal of the additional decision will not break the rights and interests of other party as execution is come under in that case by requirements which have been declared originally, and at bar of claim by lapse of time by error court in any case would come under to execution in aggregate with other obligations. Besides, the current legislation provides alternative procedures of restoration of the broken rights (giving of the independent claim, distribution of court costs). The offered mechanism of removal of the additional decision, on the contrary, would allow to reduce a legal cost not only for the claimant, but also for the respondent.

As for the present moment in the remedial legislation

There is no real possibility of removal of the additional decision

After the introduction of the basic judicial certificate into validity substantive provisions of the decision and the additional decision contain in one executive document. In case of removal of the additional decision at a final process stage it is expedient to give out the independent court order as at removal of the additional decision are resolved not only remedial questions, but, as a matter of fact, the dispute judgement on the merits is taken out.

Analyzing the aforesaid, it is represented to the author of dissertational research, that absence of direct dependence of elimination of deficiency of the judicial certificate from the introduction of the basic decision into validity will allow to expand self-control powers of court at a final process stage, that, in turn, will favorably affect and efficiency of final process as a whole.

On the basis of the above-stated it is offered to make changes to the rules of procedure regulating an order of removal of the additional decision, and to admit removal of the additional decision if the basic decision is not carried out and has not expired the term established by the federal legislation, for a presentation of the court order to execution.

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A source: Alimova Elmira Shaukatovna. the court Competence at a final process stage in civil process. The dissertation on competition of a scientific degree of the master of laws. Moscow - 2017. 2017

More on topic § 1. Powers of court on self-checking realisation at a stage of final process and the form of its display:

  1. § 2. Powers of court on assistance rendering at a stage Final process and their form of realisation
  2. Chapter 4. OTHER POWERS of COURT AT the FINAL PROCESS STAGE
  3. Chapter 2. POWERS of COURT ON REALIZATION of the DIRECT JUDICIAL REVIEW OVER FINAL PROCESS
  4. Chapter 3. POWERS of COURT ON REALIZATION of the INDIRECT JUDICIAL REVIEW OVER FINAL PROCESS
  5. Chapter 1. SUPERVISING ACTIVITY of COURT AT the FINAL PROCESS STAGE
  6. § 2. An order and forms of realisation of the direct control at a final process stage
  7. Alimov Elmira Shaukatovna. the court Competence at a final process stage in civil process. The dissertation on competition of a scientific degree of the master of laws. Moscow - 2017, 2017
  8. § 1. Concept of the judicial review at a final process stage
  9. § 1. The characteristic of legal relations at the direct judicial The control at a final process stage
  10. § 2. Judicial review kinds at a final process stage
  11. § 1. The characteristic of legal relations at the indirect judicial review at a final process stage
  12. Chapter 2. Realisation of powers of court during manufacture of judicial actions of investigatory character
  13. Chapter 2. Powers of the public prosecutor on realisation of kontrolno-supervising activity during preliminary investigation in the form of inquiry
  14. Removal of the judicial certificate about replacement of the party of final process
  15. stay, renewal and the final process termination
  16. § 6.5. Final process
  17. the investigation Final stage
  18. §3. Civil remedial means of increase of efficiency of final process: concept, Classification
  19. §2. The reference of the claim to property of the debtor in final process
  20. 11. The final stage. Working out of correcting actions and adaptation of competitive strategy.