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§ 2. An establishment of juridical facts in special proceeding

Establishment of juridical facts in various kinds of manufacture: the general and especial

The establishment of juridical facts is characteristic for all kinds of modern civil legal proceedings.

It is known, that a great bulk of the civil cases resolved by vessels, constitute issues in law civil, considered as the adversary proceeding.

At the same time during consideration of any civil case the court faces necessity of an establishment of those or other juridical facts confirming or confuting presence of disputable material legal relations. The specified juridical facts are included into the ultimate fact on business and matter for the subsequent resolution of dispute about the right. The current legislation does not contain any restrictions concerning a circle of juridical facts which can be included in it. Accordingly, within the limits of the adversary proceeding the ultimate fact can include any material and remedial facts important for correct consideration and adjudication, that is any facts connected with a subject and the cause of action, and also with objections concerning the claim.

Similar value has an establishment of juridical facts within the limits of manufacture from public legal relations.

Essentially other approach is characteristic for an establishment of juridical facts within the limits of special proceeding. It is obviously possible to allocate its following features.

1. According to item 264 GPK the Russian Federation, as special proceeding courts establish not any juridical facts, but only what matter for occurrence, changes or the terminations of the rights and duties of citizens and the organisations.

49 Hence, with reference to special proceeding the legislator differentiates concepts "juridical fact" and «the fact having the jural significance». From the point of view of theory of law, the juridical fact is the concrete vital circumstance with which rules of law connect legal consequences (occurrence, change or the termination of legal relations). Accordingly, the in itself separately taken juridical fact can not entail occurrence, change or the termination of legal relations, and only to serve as an element of the legal structure necessary for such change. As to special proceeding in its frameworks any juridical facts can be established not, but only what directly attract occurrence, change or the termination personal or property rights of citizens or the organisations, that is the facts having the jural significance in narrow sense of the given term.

In the light of the stated there is a question on legal effects of the reference of applicants in court with requirements about the fact-finding, actually not having the jural significance in the above-stated sense. The specified problem is authorised in the literature ambiguously. So, S.A.Ivanov, V.M.Zhujkov and M.K.Treushnikov believe, that in such cases it is necessary item 1 applications ch. 1 items 134 GPK the Russian Federation. In reception of the statement authors prove refusal possibility that specified «requirements have not legal character, that is... Are deprived a legal protection both in judicial, and in other order». M.S.Shakarjan adheres to a similar position also, specifying, that «having established, that the established fact not

Alexeys S.S.problem of theory of law. A course of lectures in two volumes.

I. - Sverdlovsk, 1972.-With. 341. 14 Comment to the Civil code of practice of the Russian Federation / Under the editorship of V.M.Zhujkova, M.K.Treushnikova. - M, 2007.-with. 321-322 (the author of the comment to article 134 GPK of S.A.Ivanov).

50 generates for the applicant of those or other legal effects, the judge refuses in statement acceptance under item 1 ch. 1 items 134 GPK ».

However refusal possibility in reception of such statements raises at our the considerable doubts. It is known, that item 1 ch. 1 item 134 GPK the Russian Federation supposes refusal in statement reception in the event that the statement does not come under to consideration and the permission as civil legal proceedings as it is considered and it is authorised in other legal process. Possibly, with the account of item 118 of the Constitution of the Russian Federation under other legal process it is necessary to understand the constitutional, criminal or administrative legal proceedings. Thus, it is obvious, that «other legal process» for an establishment of juridical facts is not provided by the law. Accordingly, the statement is necessary for accepting to court manufacture, to consider in essence, otherwise the court will inevitably break the right of the citizen to the judicial protection, provided by item 46 of Constitution России81. Besides, we believe what to establish not legal character of the fact probably only in a proceeding stage, but not at commencing a suit. Accordingly, if within the limits of a legal investigation in essence the court establishes not legal character of the required fact, it is necessary to give up to the applicant in its establishment.

That repents arbitral procedure the agrarian and industrial complex of the Russian Federation at all does not contain refusal institute in statement acceptance. At the same time, item 1 ch. 1 item 150 of agrarian and industrial complex of the Russian Federation supposes phase-out on business if it does not come under to consideration in arbitration court. Owing to item 218 of agrarian and industrial complex of the Russian Federation of business about the fact-finding, not having the jural significance for the rights and duties in sphere of enterprise activity, do not come under to consideration in arbitration court. Thus, in frameworks

Bfi

Civil laws of procedure: the Textbook / Under the editorship of M.S.Shakarjan. - M, 2005. With. 355.

W1 The Similar approach is traced in practice of the Sverdlovsk provincial court. See, for example; the Decision of Presidium of the Sverdlovsk provincial court from 13.12.2006г., business № 44-G-224//Archive

The similar approach proslezh estanovlenie Presidium Sv_

The Sverdlovsk provincial court.

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Arbitral procedure the statement for the finding of fact, not having jural significance, it is necessary to accept initially to manufacture. If the arbitration court during a legal investigation really establishes its not legal character, manufacture on business comes under to the termination.

2. Within the limits of special proceeding by court juridical facts of financially-legal character can be established only. For the adversary proceeding and manufacture on affairs from public legal relations the establishment and remedial juridical facts is characteristic. As to new kinds of manufactures (chapter 45-47 GPK the Russian Federation and 30-31 agrarian and industrial complexes of the Russian Federation), how truly marks V.V. Jarkov, courts of the general jurisdiction and arbitration courts at the permission of statements for contest of arbitral awards, on a carrying out foreign judicial and arbitral awards mainly investigate remedial juridical facts as the bases for the permission

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The statement of interested persons.

3. Set of variety of additionals is necessary for an establishment of juridical facts as special proceeding:

- The applicant should not have possibility to receive or restore the documents certificating the required fact extrajudicially;

- The law other order of an establishment of the corresponding facts should not be provided;

- The establishment of juridical facts should answer a specific goal.

The analysis of the specified conditions will be made by us later.

Jarkov V.V. Poznanie and proving of remedial juridical facts//the Russian year-book civil and arbitral procedure. № 2. 2002-2003 / under the editorship of V.V. Jarkova. SPb. 2004. - with. 144-145.

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4. The operating remedial legislation contains the list of the facts which are coming under to an establishment within the limits of special proceeding. In spite of the fact that the given list does not carry exhaustive character, its presence, in our opinion, testifies what not any juridical fact can be established by special proceeding rules.

5. It is important to note one more essential difference of an establishment of juridical facts within the limits of the adversary proceeding and manufacture from public legal relations, on the one hand, and special proceeding, with another.

The special proceeding purpose consists in revealing and ascertaining of those or other circumstances with which the law connects occurrence, change, the termination at the applicant of the certain rights and duties. Thus the rights should be carried out outside the limits of special proceeding '. As G.K.Krjuchkov fairly marks, «the court problem is settled by an establishment of presence or absence of the juridical fact». Legal conclusions from established facts become any more vessels, and others органами84.

As to the adversary proceeding at entertaining action the court should not only establish presence or absence of those or other facts having the jural significance but also to draw from established facts legal conclusions, that is directly to resolve civil-law dispute.

Thus, in spite of the fact that juridical facts are established in civil procedure in all kinds of manufactures, their establishment within the limits of special proceeding has considerable specificity.

N1 Chechot D.M., Ex parte proceedings. TH.: JUr.literatura, 1973.-With. 17.

К4 Hooks of K, the Tribunal of juridical facts. - M: gosjurizdat, 1956. - With. 26.

53 Establishment of juridical facts in special proceeding civil both arbitral procedure: similarity and differentiation of rules

1. As it has already been noted, by special proceeding rules in civil procedure the facts on which occurrence depends, change, the termination personal or property rights of citizens, the organisations »(ch can be established«. 1 item 264 GPK the Russian Federation), the Arbitration remedial legislation supposes establishment possibility in special proceeding «the facts having the jural significance for occurrence, change or the termination of the rights of legal bodies and individual businessmen in sphere of enterprise and other economic activities» (ch. 1 items 218 of agrarian and industrial complex of the Russian Federation). It is obvious, that the given distinction of formulations speaks general rules of differentiation of jurisdiction has put to vessels of the general jurisdiction and arbitration courts, namely - its subject and subject criterion.

2. Operating codes of practice contain lists of the facts which can be established by special proceeding rules. Despite presence of visible distinctions in the given lists, the generality of the legislative approach to their construction is looked through.

First, both these of the list have no exhaustive character, that is a circle of the facts which are coming under to an establishment, is outlined by the legislator only approximately and supposes possibility of an establishment and other facts at observance of other necessary conditions. Thus, the main criterion defining possibility of an establishment of this or that fact both in civil, and in the arbitration

54 process, its legal character, that is ability to entail legal consequences is.

Secondly, it is possible to note and some similarity of those facts, instructions on which possibility of an establishment directly contains in the law. So, if GPK the Russian Federation speaks about possibility of finding of fact of registration of a birth... For the physical person (item 3 ch. 2 items 264 GPK the Russian Federation) the agrarian and industrial complex of the Russian Federation specifies in possibility of finding of fact of the state registration of the legal person or

The individual businessman during certain time and in a certain place (item 2 ch. 2 items 218 of agrarian and industrial complex of the Russian Federation). Both codes provide possibility of finding of fact of possession and using real estate (item 6 ch. 2 items 264 GPK the Russian Federation and item 1 ch. 2 st, 218 agrarian and industrial complexes of the Russian Federation), the accessory fact pravoustanavlivajushchego the document (item 5 ch. 2 items 264 GPK the Russian Federation and item 3 ch. 2 items 218 of agrarian and industrial complex of the Russian Federation).

Thirdly, from the analysis of lists of the facts which are coming under to an establishment within the limits of special proceeding, it is visible, what not all from them can be called the legal. With reference to an establishment of such facts as, for example, the accessory fact pravoustanavlivajushchego the document, would be more correct to speak about an "evidentiary fact" establishment, that is the fact having not legal, but evidentiary value. The stated approach is represented true as the in itself fact of an accessory pravoustanavlivajushchego the document does not attract occurrence, change or the termination of legal relations, accordingly is not the juridical fact in classical understanding of the given term. The law connects approach of legal consequences not with the accessory fact pravoustanavlivajushchego the document, and with those circumstances which in this document are fixed.

' Elisejkin P. F, the Tribunal of the facts, imejushih the jural significance. - M, JUr.literatura, 1973.-S.16.

55 Despite the revealed similarity in approaches, it would be incorrect to deny, that analyzed lists of juridical facts far are not identical under the maintenance. In particular, it is obvious, that the civil remedial legislation contains considerably bolshy the list of the juridical facts which are coming under to an establishment as special proceeding. It is represented, that it is connected with the relative youth of branch of the arbitration law of procedure causing less detailed legal regulation of some questions. At the same time, we believe, that the volume of considered lists has no essential legal effect as as it has already been noted, by rules of special proceeding both in civil, and in arbitral procedure any facts having the jural significance can be established, irrespective of express indication on them in the law.

3. The system analysis of corresponding sections civil remedial and arbitration remedial codes allows to reveal unity of the approach of the legislator to definition of those conditions which presence in aggregate gives possibility for an establishment of juridical facts є special proceeding frameworks. Them concern:

Legal character of the established fact (or its evidentiary character);

Absence of dispute on the subjective substantive law; absence in the legislation of the norms providing other extrajudicial procedure of an establishment of the required fact; impossibility of reception or restoration of the corresponding documents certificating

The juridical fact, extrajudicially;

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Presence of a specific goal of an establishment legal

The fact. The questions connected with legal character of the established facts already have been shined by us above. It is obviously necessary to pass to research of other conditions of an establishment of juridical facts.

Absence of dispute on the subjective substantive law (ch. 3 items 263 GPK ch. Zet. 217АПК).

In the literature the point of view prevails, that the legal nature of affairs about the fact-finding, having the jural significance, both in arbitration, and in civil procedure, first of all, is characterised by absence of any issue in law.

Nevertheless, the statement is represented doubtful, that interest of the applicant has only remedial character as the juridical fact establishment is necessary for the subsequent realisation of substantive laws.

However, as fairly marked D.M.Chechot, it is direct at a legal investigation about a juridical fact establishment any right really it is not challenged and not защищается.86

In this connection in the literature quite often characterise special proceeding as "indisputable".

At the same time application of the given term to special proceeding

Has also the opponents which counterarguments are reduced to

To the following.

1). As the court establishes the facts which were taking place in the past, it is possible

To speak about argumentativeness of these facts. We believe, that a similar point

' CHechot D-M. Not claim proichvodstva. - M: JUr. The literature, 1973,-with. 16.

7 Millers A.A., Special proceeding in the Soviet civil procedure. - M: the Science, 1964, - With. 7;

s Abrams S.N.tribunal of juridical facts. - M, 1948. - S IО

57 sights it is not supported by powerful arguments. Proprocession of a certain time interval, let even considerable on the duration, at all does not exclude presence of conclusive evidences of existence of the required fact and absence of any objections from interested persons. 2). In itself interest of the person who have addressed in court, though this is not indisputable

Odes

Interest also is not challenged by someone particularly. The given thesis is represented proved enough. Thereupon it is necessary to define accurately concept "dispute" and "argumentativeness". If we understand as "dispute" presence of dispute on the right such dispute within the limits of special proceeding is really impossible, accordingly, special proceeding can be named by indisputable. If to understand "dispute" as the certain conflict of interests we believe, that it we will quite admit. So, for example, it is obvious, that in affairs about special disability of the citizen, a recognition of the citizen it is unknown absent etc. interests of the applicant and the person to which limit in capacity or recognise it is unknown absent, do not coincide. At the same time presence of such conflict does not interfere with a legal investigation as special proceeding. 3). In affairs about a juridical fact establishment issue in fact can take place. It is obviously necessary to dwell upon the given position. The establishment of juridical facts can be podvedomstvenno to executive organs or vessels. Distribution of powers between them is in many respects predetermined by character of juridical facts. If the establishment and registration of the "obvious" facts in most cases is within the competence of executive organs, the judicial form

Zejder N.B.judicial confession of the facts having the jural significance//Scientific notes of the Saratov juristic institution of D.I.Kursk, release Pzh., 1948. - With. 131.

58 it is provided for an establishment of those facts which existence is not obvious. Accordingly, on court consideration inconsistent proofs can be presented. A court problem in similar situations is, having compared the presented proofs to "eliminate" argumentativeness of "the required fact» and to establish its presence or отсутствие.9 Accordingly, to speak about "indisputability" of special proceeding absence of dispute on the right material is possible only under condition of understanding under indisputability.

From here one more not less interesting question on an issue in fact and issue in law parity follows.

Issue in law occurrence is known, that at a legal investigation about the finding of fact, having the jural significance, attracts in all cases leaving of the statement for an establishment of the juridical fact without consideration. At interested persons the right to resolve dispute as the adversary proceeding (ch remains. 3 items 263 GPK the Russian Federation, ch. 4 items 221 of agrarian and industrial complex of the Russian Federation).

Approving, that issue in fact is identical to issue in law, we will inevitably come to conclusion, that in each case of an establishment of the "disputable" juridical fact it cannot be made within the limits of special proceeding. If to speak about existence possibility «issue in fact in the pure state» this problem disappears.

On the given question among protsessualistov there were 3 basic points of view:

Issue in fact exists by consideration of the majority of affairs in a special proceeding order as legal proceedings are provided for an establishment of unevident, "disputable" juridical facts; issue in fact not always attracts occurrence

CHechotD.M. Ex parte proceedings. TH: JUr. The literature, 1973,-with. 16.

59 issues in law. ' Supporters of the given position give reason for it and what issue in fact possibility causes participation in business of the interested persons possessing possibility to challenge circumstance which acknowledgement demands заявитель92.

Issue in fact should be understood not as simple doubt in its existence, and as presence of mutually exclusive statements of interested persons about its presence or legal effect; issue in fact and issue in law inseparably linked, behind each dispute on existence or legal effect of the established fact costs issue in law; issue in fact cannot have a place in special proceeding.

Occurrence of dispute on the juridical fact always attracts issue in law occurrence as finding of fact - not end in itself, it is necessary for realisation of the rights inseparably linked with the given fact. However issue in law occurrence attracts leaving of the statement without consideration only in the event that the given dispute podvedomstvenen суду.94

In our opinion issue in fact not in all cases inevitably attracts issue in law occurrence. Characterising a parity of these concepts from the point of view of philosophical categories of "necessity" and "accident", A.V.Yudin underlined, that «issue in fact does not attract with necessity of issue in law, and issue in law is casual, individual continuation of issue in fact» 95. Thus, as criterion of differentiation of issue in fact and issue in law unambiguity, inevitability, a spontaneity of their interrelation can serve. In

' її

42 Dobrovolskij A.A., Ivanov S.A.core of a problem of the claim form of protection of the right. - m; the Moscow State University, 1979г. -

WITH. 152.

' Elisejkin P. F's l, the Tribunal of the facts having the jural significance. - M: JUr. The literature,

1973, - WITH. 29.

Morejn I.B.core questions of the theory of special proceeding in the Soviet civil procedure. avtoref.

diss.... kand. jurid. Sciences. L, 1951г.-With. 17-18

1) 4 Millers A.A., Special proceeding in the Soviet civil procedure. - M: the Science, 1964, - With. 11-13,

16.

' J> Yudin A.V.special proceeding in arbitral procedure. - Samara, 2003. - With. 74.

CHechotD.M. Ex parte proceedings. - M: JUr. The literature, 1973,-with. 19.

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Case if an establishment of the juridical fact inseparably linked with the issue in law, the corresponding statement be left without consideration. If issue in law is one and possible consequences of issue in fact which can arise or not arise in the future, an establishment of the required juridical fact probably within the limits of special proceeding.

Generalising the stated discussion, it is possible to draw following conclusions.

1. The understanding of special proceeding as indisputable is possible only under condition of understanding of "dispute" as dispute on the subjective substantive law, but not the simple conflict of legally significant interests.

2. The indisputability means only absence of issue in law, but supposes issue in fact presence.

Absence in the legislation of the norms providing other extrajudicial procedure of an establishment of the required fact (item 265 GPK, ch. 1 items 219 of agrarian and industrial complex).

The given rule excludes establishment possibility by rules of special proceeding of those facts which, according to the law, should be established extrajudicially. So the establishment judicially the fact of an accessory of the certificate to an award or a medal of the citizen, a name, a patronymic which surname do not coincide with specified in the certificate, for example, is not supposed. Corresponding recommendations have been given by Plenum of the Supreme Court of the USSR in the Decision № 9 from 21.06.1985г. «About judiciary practice on affairs about the fact-finding, having the legal

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Value »96. In the methodological plan they keep the urgency and now as the given questions dare directly the body which has given out the document.

Impossibility of reception or restoration of the corresponding documents certificating the juridical fact, extrajudicially (item 265 GPK, ch. 1 items 219 of agrarian and industrial complex).

Extrajudicially it is accepted to understand as impossibility of reception of documents as absence of a statutory procedure for registration of the fact (for example, the dependence fact), and non-observance of the established procedure for registration of the fact at impossibility of its observance (for example, registration of the fact of acceptance of the inheritance after 6-month's term from the date of death of the estate-leaver).

We believe, that presence or absence of an extrajudicial order of an establishment of the required facts, also as well as possibilities of reception or restoration of the lost documents cannot be established court at a commencing a suit stage. The specified questions can be resolved only during proceeding. Accordingly, absence of provided items 265 GPK the Russian Federation and ch. 1 item 219 of agrarian and industrial complex of the Russian Federation of conditions of an establishment court or arbitration court of juridical facts is the special basis for phase-out on business. The similar understanding of positions of the legislation will be adjusted and with norms ch. 1 items 263 GPK the Russian Federation and ch. 1 items 217 of agrarian and industrial complex of the Russian Federations establishing, that affairs about fact-finding,

' "' the Decision of Plenum of the Supreme Court of USSR Jfe9 from 21.06.1985г.« About judiciary practice on affairs about the fact-finding, having the jural significance »(item 7)//the Collection of Decisions of Plenums of the Supreme Courts of the USSR and RSFSR (Russian Federation) on fazhdanskim to affairs. - M: Spark, 1999г. - With. 117.

62 having the jural significance, are considered under general rules of the adversary proceeding with the features established by corresponding heads of codes of practice.

Thus, if by court of the general jurisdiction or arbitration court it will be established, that the juridical fact can be established in other extrajudicial order, or the applicant has a possibility of restoration of the lost documents, manufacture on business comes under to the termination.

Presence of a specific goal of an establishment of the juridical fact (item 267 GPK, item Зч.1 agrarian and industrial complex item 220).

The specified condition is represented quite proved as with its help legal character of this or that fact is defined. Besides, this or that purpose can define the legal maintenance of the required juridical fact, a condition of its establishment, that is to influence a choice of norms of the substantive law which is coming under to application, and to cause the ultimate fact on business. So, for example, finding of fact of dependence with a view of reception of the right to the inheritance, with a view of reception of pension and with a view of reception of indemnification of the caused harm is made by court on the basis of essentially different criteria of definition of expense (in more details this question will be considered in § 2 chapters of II dissertational research).

At the analysis of the specified condition there is a question on absence legal effects in the instructions statement on the purpose of an establishment of the required juridical fact. Operating codes of practice do not contain the direct answer to the brought attention to the question. In our opinion, in a similar case the statement should be left without movement on the basis of norms of item 136 GPK the Russian Federation or item 128 of agrarian and industrial complex of the Russian Federation. It is known, that manufacture on affairs about an establishment of juridical facts should

63 to be made under general rules claim manufacture with the features established by corresponding heads GPK and agrarian and industrial complex of the Russian Federation. In particular, item 267 GPK and agrarian and industrial complex item 220 contain special requirements to the statement for a juridical fact establishment. The specified requirements urged to add general rules about the maintenance the statements fixed by item 131 GPK and item 125 of agrarian and industrial complex of the Russian Federation. Accordingly, consequences of infringement specified requirements should be similar to consequences of non-observance of general rules about infringement of norms about the statement maintenance.

In a science of the law of procedure the question was repeatedly brought up what to understand as the purpose of an establishment of juridical facts.

In overwhelming majority of cases the juridical fact establishment judicially serves as a necessary condition of realisation of the concrete right. In similar situations definition of the purpose of a reference to the court does not represent work. However chances when the establishment of the certain juridical fact does not pursue any specific goal directly at the moment of a reference to the court. So, for example, with the statement for finding of fact of family relations, the fact of registration of marriage, the fact of adoption, etc. quite often the citizens which unique purpose at the moment of a reference to the court is accurate definition of the legal status in those or other material legal relations address. In this connection R.F.Kallistratova believes, that the reference to court with the request for a juridical fact establishment testifies to presence of certain legal interest at the applicant. Therefore even in the absence of a specific goal the statement should be considered in essence. As the argument proving the given conclusion, the author refers, in particular, that the fact of family relations and other similar facts is much easier for proving and establishing directly after loss

' Kallistratova R. F's l. Affairs about fact-finding on which occurrence depends, change or the termination of the rights of citizens or legal bodies//the Scientific comment of judiciary practice on civil cases for 1962г.,-М.: gosjurizdat, 1963.-With. 160.

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Corresponding documents, instead of after the lapse of a considerable time interval when the applicant will have in it a necessity, that is a specific goal. The opinion stated on the given question of P.F.Elisejkinym is represented to more true. Partially agreeing with R.F.Kallistratovoj, he specifies, that the fact jural significance is caused not only its communication with any right, but also with a legal status of the person in separate legal relations. Hence, as the purpose of finding of fact can be both realisation of the concrete right, and definition of a legal status of the person: it is important only that between the established fact, on the one hand, and the right or the protected law communication in which force the fact gets the jural significance "existed interest - with another.

In this connection the formulation of operating agrarian and industrial complex of the Russian Federation, fixing is represented to more successful, that in the statement the substantiation of necessity of an establishment of the juridical fact whereas GPK the Russian Federation speaks about necessity of instructions of the purpose should contain

Its establishments.

4. As is known, affairs about the fact-finding, having the jural significance, are initiated on the basis of statements of interested persons.

The requirements shown GPK the Russian Federation and agrarian and industrial complex of the Russian Federation to the statement for an establishment of the juridical fact, also are similar.

First, it should correspond to the certain requirements shown to the statement of claim. So, it agree ch. 1

' "" * Kallistratova R. F. Affairs about fact-finding on which occurrence depends, change or the termination of the rights of citizens or legal bodies//the Scientific comment of judiciary practice on civil cases for 1962г., - M: gosjurizdat, 1963. - With. 161.

vd Elisejkin P. F. The Tribunal of the facts having the jural significance. ■ m: JUr. The literature, 1973.-with. 14.

65 items 220 of agrarian and industrial complex, the statement for the fact-finding, having the jural significance, should correspond to requirements ch. 1, items. 1, 2, 10 ch. 2 items 125 of agrarian and industrial complex. Operating GPK directly does not contain a similar rule. However with the account ch. 1 item 263 GPK is obviously possible to make a conclusion on necessity of conformity of the maintenance of statements for an establishment of the juridical fact to a number of the general requirements of item 131 GPK, namely ch. 1, items 1,2,8 ch. 2 items 131 GPK.

Secondly, according to express indication of item 267 GPK and agrarian and industrial complex items 220 in the statement should be furnished the proofs confirming impossibility of reception or restoration of corresponding documents extrajudicially.

Thirdly, in the statement should be specified, for what purpose it is necessary to establish the given fact (item 267 GPK). Thus, as it has already been noted, the Arbitration code of practice contains more successful formulation and speaks about «a substantiation of necessity of an establishment of the given fact» (item 3 ch. 1 items 220 of agrarian and industrial complex).

Except those items. 1-2 ch. 1 items 220 of agrarian and industrial complex in addition demand from the applicant to formulate the required fact and to specify the norms of the law connecting approach of legal consequences in sphere of enterprise or other economic activities with the given fact. It is represented, that absence of corresponding requirements in GPK is dictated by aspiration to provide availability of judicial protection to the citizens who are not possessing due legal knowledge.

5. Affairs about the fact-finding, having the jural significance, have the exclusive venue. Both in civil, and in arbitral procedure the corresponding statement should

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To be brought an action on a residence of the applicant. The exception is constituted by statements for finding of fact of possession and using real estate which are brought an action on the location of such property (item 266 GPK, ch. 2 items 219 of agrarian and industrial complex).

6. To number of the persons participating in business, traditionally carry the applicant and interested persons.

It is obvious, that as the applicant the person for whom the juridical fact establishment is necessary for realisation of the right, for protection of the subjective interest acts. In case the applicant acts not in the, and in another's interests, it is necessary to refuse in an establishment of the required fact, as operating remedial the legislation does not suppose replacement of the inadequate claimant. The same norm is necessary for extending and to replacement of the applicant in special proceeding affairs.

As to interested persons, that, unlike the applicant, they do not initiate process, and enter the begun business under the initiative, at the initiative of the applicant or court. Their interest can be as is connected with their personal or property rights, and to follow from their competence as controls. As criterion of definition of interested persons the purpose of an establishment of the required fact and those legal effects with which it attracts usually serves. As marked R.F.Kallistratova, it is possible to carry to number of interested persons of the following:

- The persons which mutual relations with the applicant depend on an establishment of the required fact (for example, other successors etc.);

- The organisations in which the applicant has intention to use the decree (bodies of social security, etc.);

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- The organisations which under the law could certificate the required fact, but for any reasons have not made it.

Last group of interested persons raises serious doubts. So, for example, it would be incorrect to get to take part in business about finding of fact of acceptance of the inheritance of the notary which has given up in delivery of the certificate on the right to the inheritance in connection with the admission of statutory 6-month's term of the reference with the corresponding statement. Financially-legal

Interest of the notary in an establishment or not finding of fact of acceptance of the inheritance is absent. Its actions are not challenged, for it there are no legal consequences. The decree about an establishment of the required fact forms the unequivocal basis for delivery of the necessary certificate owing to the law. Unlike the second group of bodies which at satisfaction of requirements of the applicant, will be obliged to resolve a question on its social security etc., on the notary it is not assigned-legal duties any financially.

In this connection we believe, that it is expedient to vessels to be limited to reclamation from the notary of the necessary information on hereditary business. The similar argument can be resulted concerning necessity of participation of bodies of the REGISTRY OFFICE on affairs about finding of fact of registration of a birth, death, marriage or divorce.

Thus, compulsory condition for participation in business is presence of material or remedial interest in its outcome.

7. Preparation has put to proceeding on the given category of affairs has a little truncated character. In particular, to it

Ksh_listratova R. F. The scientifically-practical comment to GPK RSFSR. - with. 285.

68 the decision of such problem as reconciliation of the parties is unusual. Besides, at a preparation stage fulfilment of some legal proceedings, including, legal proceedings under the security for cost is impossible. In the rest of the purpose and problems of preparation of business, court action at this stage of process completely correspond fixed in chapters 14 GPK the Russian Federation and agrarian and industrial complex of the Russian Federation. In particular, the court should explain to the persons participating in business, their rights and a duty, to resolve a question on necessity of attraction to business of interested persons, to specify business actual facts, namely, definitively to be convinced of legal character of the established fact and impossibility of its establishment extrajudicially, to find out the purposes of an establishment of the juridical fact etc. Specified positions are directly fixed in item 221 of agrarian and industrial complex of the Russian Federation and the Russian Federations follow from the system analysis of item 263 and chapter 14 GPK.

In case of need on the given category of affairs carrying out of preliminary session of the court is supposed. However the purposes of its carrying out also have the truncated character in comparison with fixed in ch. 1 items 152 GPK. In particular, in connection with absence in special proceeding of the parties carrying out of preliminary session of the court for remedial fastening of such administrative action (item 39 GPK the Russian Federation) - as the conclusion of the agreement of lawsuit is impossible. At the same time, it is obviously possible refusal of the applicant of an establishment of the required juridical fact in preliminary session of the court. We believe, that such refusal will entail the legal effects similar to refusal of the claimant from the claim.

Also carrying out of preliminary session of the court with a view of research of a question on the admission of terms of a reference to the court as those are not provided by the law is impossible. Thus, carrying out of preliminary session of the court is possible with a view of definition of legally significant circumstances and sufficiency

69 proofs, and also fulfilment of other legal proceedings, characteristic for a preparation stage. It is necessary to notice, that such understanding of the purposes of preliminary session of the court completely corresponds to item 136 of agrarian and industrial complex of the Russian Federation.

8. Proceeding on affairs about the fact-finding, having the jural significance, is spent under general rules of the adversary proceeding with some features caused by specificity of cases in point, that is proceeds in the civil or arbitration remedial form.

Among the most considerable features of proceeding it is possible to name the truncated action of a principle of competitiveness. As special proceeding affairs are characterised by absence of the parties with opposite interests, absence of issue in law, competition as that, is incompatible with the legal nature of the given kind of manufacture. The court listens to the applicant and investigates the proofs presented to it, and also listens to opinion of interested persons concerning the request of the applicant. However, as it has already been noted, absence of issue in law not always means "indisputability" of the established fact. Accordingly, in case the required fact is challenged by interested persons, they have the right to give to court certain proofs in a substantiation of the objections. At such situation certain sides of a principle the competitivenesses legislatively fixed in item 9 of agrarian and industrial complex of the Russian Federation and the item 12 GPK the Russian Federations, take place and in affairs about the fact-finding, having the jural significance.

It is possible to allocate and some features of proving under special proceeding cases in point. Among proofs

70 on affairs about the fact-finding, having the jural significance, the important place are occupied with a testimony. It speaks the nature of these affairs: in most cases they are initiated in connection with necessity of restoration of the lost documents, or in connection with necessity of an establishment of circumstances which documents do not make sure. However vessels should not forget, that a testimony - only one of evidences which should be checked up including by means of other proofs. Thus at research of written evidences it is necessary to pay attention not only to the maintenance, but also the form of documents. In more details features of proving will be investigated by us in the second chapter with reference to each juridical fact which is coming under to an establishment, separately.

Disputes in the literature are caused by a question on necessity of carrying out of debate on the given category of affairs. So, A.A. Millers believed, that «absence of the parties with opposite legal interests in proceeding excludes such procedure, as hearings of arguments» 101. P.F.Elisejkin, on the contrary, specified, that judicial debate has for an object revealing of definitive requirements of interested persons. Therefore judicial debate should take place and in affairs of special proceeding with that difference, that here not the parties, and the applicant and

102

Interested persons sum up a legal investigation. V.D.Kajgorodov103 adhered to a similar position also.

Under the general rule proceeding terminates in awarding judgement. However dismissal of action by manufacture or leaving of the statement without consideration is possible. The special basis for leaving without statement consideration about

"" A.A.special proceeding's Millers in the Soviet civil procedure. - M: the Science, 1964г. - With. 113. 1,12 Elisejkin P. F. The Tribunal of the facts having the jural significance. - M, 1973. - With. 70-71 11И Kajgorodov V. D. Remedial features of judicial disposal of legal proceeding about the fact-finding, having the jural significance. - Sverdlovsk, 1987. - With. 54.

71

Juridical fact establishment it is provided ch. 4 items 221 of agrarian and industrial complex of the Russian Federation: in case during proceeding on business about the finding of fact, having the jural significance, it will be found out, that there was an issue in law, the arbitration court leaves the statement for the finding of fact, having the jural significance, without consideration about what takes out definition. The similar norm contains in ch. 3 items 263 GPK the Russian Federation. However if the Arbitration code of practice has included a corresponding rule and in the general list of the bases for leaving of the statement without the consideration, provided by agrarian and industrial complex item 148 in GPK the Russian Federation the corresponding basis in item 222 list for not clear reasons is absent.

It is necessary to notice, that the termination of proceeding without adjudication is possible and on the general bases provided by codes of practice for the adversary proceeding. However the specified norms are necessary for applying with the account of specificity of the legal nature of affairs of special proceeding. In particular, under «non-observance pretenzionnogo a darraigning order» (and. 1 item 222 GPK the Russian Federation) it is necessary to understand failure of evidence of impossibility of an establishment of the required fact administratively. Besides, nepodvedomstvennost affairs about an establishment of juridical facts to the arbitration courts excludes leaving of the statement without consideration on the basis of paragraph 5 of item 222 GPK the Russian Federation.

As to phase-out on business application to a considered category is represented impossible has put paragraph 4 of item 220 GPK the Russian Federation - phase-out on business in view of the statement court of the agreement of lawsuit, and also paragraph 5 of item 220 GPK the Russian Federation - presence of the decision of the arbitration court. At the same time phase-out on business on the basis of paragraph 3 of item 220 GPK the Russian Federation is obviously possible

72 - in connection with «refusal of the claimant of the claim», that is refusal of the applicant of an establishment of the required juridical fact.

Similar conclusions are fair and for features of application of the item of item 148, 150 agrarian and industrial complexes of the Russian Federation to affairs about an establishment of juridical facts in arbitral procedure.

9. The legal nature of the decisions accepted on affairs about an establishment of the juridical fact, long time caused disputes in the literature. Before acceptance GPK RSFSR 1964г. Proceeding on the given category of affairs came to an end with definition removal, instead of decisions. The reasons of similar change in the legislation are interpreted by researchers variously. So, A.A.Melnikov believes, that the aspiration of the legislator to unification of procedure of proceeding has caused necessity of unification and accepted judicial постановлений104. A.V.Judin explains such change not «unification of procedure of proceeding», and «streamlining of kinds of civil legal proceedings and their new understanding» ". However more weighty represent the arguments connected with requirements to that total certificate which is taken out on affairs about an establishment of juridical facts. This certificate should be lawful, proved, full and unconditional, that is should meet the requirements, shown to a judgement. Possibly, this unity of requirements also has entailed changes in the legislative approach.

At the same time the legal nature of judgements on special proceeding affairs has features. Unlike affairs in which issue in law is authorised, the decision only establishes the juridical fact, but does not solve a question on legal relations of interested persons. Therefore, as truly marked D.M.Chechot, the decision in affairs of the special

A.A.special proceeding's millers in the Soviet civil procedure. - M: the Science. 1964г. - S! 16. Yudin A.V.special proceeding in arbitral procedure. - Samara, 2003г. - With. 148.

73 manufactures though finishes their consideration, but do not resolve up to the end a question on legal relations of the applicant or other interested persons. The decision of the given question occurs outside of special proceeding.

It is interesting, that corresponding heads operating GPK the Russian Federation contain a number of the norms fixing specific features of decrees on separate categories of affairs of special proceeding. In this connection, in the literature the point of view expresses necessity of entering into chapter 27 GPK the Russian Federation "General provisions" of special proceeding of article fixing features of acceptance, the maintenance and decision execution on special proceeding affairs ' 07. It is represented, that entering of similar changes is not quite proved, as these questions are regulated by independent articles and their moving to chapter 27 will result in duplication of positions already existing in the code.

J.Spornym in the theory remains a question on validity of decisions on special proceeding affairs, and, in particular, on affairs about the fact-finding, having the jural significance.

According to one researchers, the specified decisions do not enter at all validity. Others believe, that similar decisions though enter validity, but do not possess all its properties, namely, in them are not inherent prejuditsialnost, exclusiveness and исполнимость1.

106 Course of the Soviet civil law of procedure / Under the editorship of Melnikova A.A.th II. - M: a science, 1981.-with. 194.

107 Mokrousovs L.M. To a question on decision-making special provisions on the affairs arising from public legal relations, and special proceeding affairs//Arbitration and civil procedure, 2005, №6.-With. 13.

SH | Rapoport faktov.//Socialist legality, 1946г., № 1-2,-with. 42.

109 CHechina N.A.validit of a judgement in a science of the Soviet civil procedure.

avtoref. diss.... kand. jurid. Sciences. - L, 1949. - With. 19.

74 Interesting V.P.Volozhanina's position is represented. The author believes, that on affairs about an establishment of juridical facts all properties of validity, however signs of exclusiveness and feasibility are inherent in decisions have in them narrower character, than in decisions on affairs claim производства110.

However, of structure of properties of validity of the decree in the literature also there is no uniform point of view.

In a remedial science presence is not challenged from validity of decisions of such element as compulsion.

As to an irrefutability, exclusiveness and prejuditsialnosti the majority of authors agree, that all of them are display of validity of the decree. However if a number of scientists these properties as consider the phenomena independent others believe, that prejuditsialnost there is an exclusiveness display '] '.

The extremely disputable is the question on value of feasibility. So, M.G.Avdjukov and D.I. The point of view adhere to Semimordvinians, that feasibility represents an independent and essential consequence lawful силы11. N.A.Chechinoj's sights on the given question have undergone to interesting evolution. If in earlier works the author said that «feasibility not always is an obligatory element of validity of a judgement for not all decisions can be ispolnimy though all of them enter validity» 11 after its sights have a little changed. N.A.Chechina has come to conclusion, that feasibility should be understood not as

On

Civil procedure: the Textbook / Under the editorship of V.V. Jarkova. M, 1999. - with. 380.

' "Gurvich M. A. Obshcheobjazatelnost and validity of a judgement//Works VJUZI, volume XVII, 1971г. -

WITH. 181

112 Avajukov. - M: gosjurizdat, 1959г. - With. 139

11 CHechina N.A.validit of a judgement in a science of the Soviet civil law of procedure. -

L.I.validit's Semimordvinians of a judgement. - Tbilisi, 1964г.-With. 28. 11 CHechina N.A.Zakon_ L: I LIE, 1949.-with. 17

75 independent property of validity, and as «display obshcheobjazatelnosti decisions».

The basic arguments of removal of feasibility for frameworks of validity of the decree are reduced to the following. First, feasibility cannot be validity display as under laws of logic the consequence cannot come before the reason. If to understand feasibility as a validity consequence it turns out, that under those decisions which come under to obligatory or facultative immediate execution, the consequence in the form of feasibility comes before the reason - validity of the decision "5. Secondly, feasibility is not validity display for this property is inherent only in decisions under claims about award as to certificates of compulsory realisation legal норм116. Other decisions do not come under to enforcement, in spite of the fact that validity enter.

It is represented, that similar restriction of a sign of feasibility is caused only by distinction in understanding of the term "feasibility". If to understand as feasibility only possibility compulsory decision executions quite proved the conclusion about independence of the given legal phenomenon is represented, absence of its direct connection with validity of the decree. Under condition of understanding of feasibility as possibilities of realisation of a judgement the given property quite can be interpreted as one of displays of validity of the decree.

114

CHechina N.A.rule and a judgement. - L: I LIE, 1961г. - With. 57.

115 Gurvich M. A. Obshcheobjazatelnost and validity of a judgement//Works VJUZI, volume XVII, 1971g. -

WITH. 179.

' "' Maslennikov ІІ. Of a judgement in the Soviet civil law of procedure.

Diss.... kand. jurid. Sciences, - Sverdlovsk, 1975г.-With. 71.

76 With reference to decisions on an establishment of juridical facts it is necessary to notice, that, in our opinion, all properties of validity are to the full peculiar to them.

Decisions on an establishment of juridical facts, undoubtedly, possess compulsion and an irrefutability. It is inherent in them and prejuditsialnost, as ch. 2 items 61 GPK the Russian Federation and ch. 2 items 69 of agrarian and industrial complex of the Russian Federation do not contain any restrictions in the relation pre-judicial ™ the similar facts: the juridical facts established in special proceeding do not come under to repeated proving at the subsequent resolution of dispute about the right as the adversary proceeding. As to exclusiveness, how fairly marks A.V.Judin, possibility of contest of decisions on affairs about an establishment of juridical facts in adversary proceeding at all does not belittle their exclusiveness as "exclusiveness" means impossibility of a reference to the court with the identical statement, and claim giving means netozhdestvennost the made demands. The author and with reference to a feasibility sign adheres to the similar approach: If to understand as feasibility not only possibility of enforcement of the decision, but also lawful execution of the decision property of feasibility, undoubtedly, is inherent in decisions on the given category дел117. Fair L.M.Mokrousovoj's believing opinion is represented also, that property of feasibility cannot be reduced to decision execution as end in itself. From its point of view, in practice to the most important components of feasibility decree investment as remedial document sufficient and unconditional, formal and substantial requisites is that the person or body to which the decision is addressed, not only has been obliged it to execute, but also had such possibility. Starting with

Yudin A.V.special proceeding in arbitral procedure. - Samara, 2003г. - With. 150-152.

77 given understandings of feasibility, the author does a conclusion that decisions on the fact-finding, having the jural significance, in

11Я

To full measure possess the given property.

11, the Decision on affairs about an establishment of juridical facts is if necessary the basis for registration of the given fact by corresponding bodies, but does not replace the documents which are given out by these bodies (item 268 GPK the Russian Federation, ch. 3 items 222 of agrarian and industrial complex of the Russian Federation). Thus, it is obviously possible to speak about realisation of decisions on affairs about an establishment of juridical facts, understanding under realisation following actions:

Delivery of a copy of the decree;

Established fact registration if it comes under

Registration;

Fulfilment by the authorised bodies of the defined

The actions connected with an established fact, including

Delivery of necessary documents and свидетельств119.

Thus, it is obvious, that to the legislative approach to institute of the fact-finding, having the jural significance as special proceeding in arbitration and civil procedure, despite insignificant distinctions, the unity of legal regulation is peculiar.

118 Mokrousovs L.M. To a question on decision-making special provisions on the affairs arising from public legal relations, and special proceeding affairs//Arbitration and civil procedure, 2О05, №6.-С. 14.

119 There zhe.-with. 15-16.

Whether 78 Allows to draw it a conclusion on interbranch character of the given institute?

In a modern remedial science allocate three principal views of institutes of the civil law of procedure:

- Branch institutes of the civil law of procedure;

- Interbranch remedial institutes;

- Complex obshchepravovye institutes.

Till now this question on the legal nature of institute of the fact-finding, having the jural significance, was not a subject of independent scientific research.

It is obvious, that those should be carried to branch institutes of the civil law of procedure from them which contain only norms of the civil law of procedure and have no analogues in other remedial branches. In the literature the point of view which is calling in question existence of institutes of the law of procedure in the pure state has been stated. One of the powerful arguments resulted in a substantiation of a similar position, presence of remedial features of consideration of each category of affairs serves. So, R.E.Gukasjan wrote, that, «as the activity form is predetermined and established by system of rules of procedure of the civil law of procedure oposredovanno through activity on the remedial form and, accordingly, on the law of procedure substantive law branches» 120 influence. The conclusion From here arises, that all institutes of the law of procedure have complex is material-remedial character.

We believe, that such approach makes sense only under condition of the widest understanding of the term «institute of the law of procedure». If

1211 Gukasjan R. E, Influence of material legal relations on the process form in the adversary proceeding I Questions of the theory and civil procedure practice. - Saratov, 1976,-with. 31-32.

79 to treat this concept of narrower, its standard sense it is represented obvious, that such institutes of the law of procedure as "terms", "court costs" have purely remedial nature.

At the same time successful forward development of branch of the arbitration law of procedure has led to that by rules of civil legal proceedings is led today not only civil, but also arbitral procedure. Moreover, it is known, that ch. 2 items 118 of the Constitution of the Russian Federation establish, that the judicial authority in Russia is carried out by means of constitutional, civil, administrative and the criminal trial '. Arbitration legal proceedings as that are not provided by the organic law of the Russian Federation. In development of this position by a number of authors the conclusion that the arbitration law of procedure at all does not possess branch independence has been drawn, and is a part of the civil law of procedure (N.A.Chechina, I.M.hare, M.Z.Schwarz, etc.) . Unfortunately, within the limits of the given research possibility in detail to shine discussion about a place of the arbitration law of procedure in system of the Russian right as a whole is absent. It is thus obvious, that, considering cases, both general jurisdiction courts, and arbitration courts carry out civil legal proceedings which should be uniform. Accordingly, all system of the arbitration law of procedure is in many respects similar to system of the civil law of procedure: the specified branches have variety of the similar institutes containing similar norms.

Stated really allows an occasion to doubt existence in modern Russian legal system of branch institutes civil or arbitral procedure in the pure state.

"The constitution of the Russian Federation. The Russian newspaper, №237, 25.12.1993г is accepted by plebicite 12.12.1993г//.

so

Besides, it is necessary to have in view of, that variety of institutes is characteristic to all branches of the law of procedure as a whole, that is both civil and arbitration, and to the criminal law of procedure.

As to interbranch institutes and complex obshchepravovyh institutes it is obviously possible to approve, that the basis for science development in the given direction has been put in pawn by S.S.Alekseevym. The scientist defined the legal institution as «legislatively isolated complex of legal rules...» «Legally homogeneous legal education which is a part of strictly certain branch» 123. At the same time on its trope, «division of the right into branches at all does not mean, that between them there is« a Chinese wall »which would divide branches into spheres absolutely isolated from each other» 124. In this connection, S.S.Alekseev enters concept so-called «the mixed institute», defining it as «institute of the given branch which includes elements of other method of legal regulation» 1. As an example of the mixed institutes the author results the civil-law institutes connected with rail transportation of cargoes, post service, compulsory insurance etc. where a carrier, the insurer, on the one hand, represents itself as the legal person, and, with another - carries out imperious, supervising functions of state body.

Thus, allocation in right structure «mixed institutes» has paved the way for wider understanding of the term "legal institution" and formations of such concepts as "interbranch" and «complex obshchepravovoj» institute.

111 Alekseev S.S., Problems of theory of law. A course of lectures in two volumes. I.-Sverdlovsk, 1972.-With. 141

^ There zhe.-with. 341

' "4 In the same place.

t In the same place.

12,1 In the same place, - With. 142,

81

Presence of interbranch institutes has been proved for the first time in a science of the law of procedure of J.K.Osipovym on a jurisdiction example.

Investigating the given institute, the author has set for itself a problem to answer following questions:

- Whether, the norms regulating jurisdiction concern area remedial or the substantive law;

- Whether is set of the named norms the legal institution;

- If it is that, whether it is possible to consider it in

127

Quality of interbranch institute. During JU.K.Osipov's research has come to conclusion, that, despite a combination in legal regulation of jurisdiction of norms material and remedial ' the rights, last does not form independent branch of law, and remains institute of the right remedial. However owing to that norms about jurisdiction are inherent simultaneously in several branches of the law of procedure, the author regards jurisdiction as institute interbranch.

A little later the specified approach to legal institutions has received development at level of theory of state and law in works - ST. poleninoj.

Studying integration processes both in scales of all right, and in scales of its separate branches, it does a conclusion, that interbranch institutes arise on a joint of so-called allied industries, that is the branches possessing a known generality of a circle regulated them

Osipov JU.K.jurisdiction of legal affairs.-Sverdlovsk, 1973г.-With. 53

82

Relations. Being based on the given criterion the author classifies all interbranch institutes on "functional" - what arise on a joint of adjacent non-uniform branches of law, and "boundary"-formed on a joint of adjacent homogeneous branches права1.

It is interesting, that ST. polenina considers as adjacent the certain branches of the substantive law having similarity in a subject of regulation. Developing the stated position, it is obviously possible to draw a similar conclusion and with reference to branches of the law of procedure. Accordingly, institute of an establishment of juridical facts, it is possible to consider as interbranch at least because it is inherent in several allied industries of the right, namely the civil remedial and arbitration law of procedure.

Most full the problem of interbranch institutes has been investigated by I.V.Reshetnikovoj with reference to the law of evidence.

As a result of research of the sights stated in the literature, I.V.Reshetnikova comes to conclusion, that similarity presence in legal regulation of certain institutes in all branches of the law of procedure any more does not cause doubts. However, marking the specified similarity, some authors (A.S.Kozlov, R.S.Belkin) only suggest to study these institutes in the comparative plan, not supposing possibility of existence of interbranch institutes. In this connection, I.V.Reshetnikova speaks about necessity accurately to establish, «where the border of transition from simple similarity to interbranch institute».130 Is represented proved, that for giving to this or that institute of the status interbranch

sh polenina - ST. Complex legal institutions and formation of new branches of law//Jurisprudence.

1975r. Jfc3.-C.74.

124 There. 75.

"" Reshetnikova I.V.course of the law of evidence in the Russian civil legal proceedings. - m,

NORM, 20OOG.-S.31-32.

83 not so much presence of the institutes with the same name in various branches of law, how many existence of strong external and internal communications between these институтами1 \is necessary

Coming back to institute of an establishment of juridical facts, it is possible to note presence of obvious external similarity in its legal regulation in the civil and arbitration law of procedure: carrying out civil legal proceedings, courts of the general jurisdiction and arbitration courts establish in special proceeding similar juridical facts on the basis of practically identical remedial rules. Uniformity of a legal regulation of this institute in remedial branches has already been in detail consecrated by us above and, in our opinion, allows to understand institute of an establishment of juridical facts as a special legal mode for civil and arbitral procedure and to speak about interbranch character of considered institute.

Besides, as it has already been noted, interbranch character of institute of an establishment of juridical facts follows not only from a concrete generality of rules of consideration of the given category of affairs in civil and arbitral procedure, but also from abstract unity of the civil and arbitration remedial form.

However the substantive law analysis allows to notice, that norms about an establishment of juridical facts contain and in its branches.

First, norms of the substantive law fix those facts which can be established as special proceeding.

1 In the same place.

84 Civil and Arbitration codes of practice in turn only regulate procedure of their establishment.

Secondly, in some cases, the rules of substantive law give possibility of an establishment of juridical facts to various executive organs.

So, for example, the current legislation connects variety of legal consequences with the dependence fact. In particular, as its legal consequences act the right to inheritance (item 1148 item, 1149 GK the Russian Federation), the right to pension reception. The dependence fact can be established as in judicial, and administratively. In case dependence finding of fact is necessary, for example, for appointment of labour pension on the occasion of loss of the supporter (item 9 of the Federal act from 17.12.2001г. № 173 FZ «about labour pensions in the Russian Federation» (red. From 14.02.2005г.)) ), it is established by territorial body of the Pension fund of the Russian Federation on a residence of the person having the right to pension, on the basis of inquiries of housing bodies or local governments, inquiries on incomes of all members of a family and other documents containing demanded data (the Decision of the Ministry of Labour and social development of the Russian Federation № 17 and the Pension fund of the Russian Federation № 19пб from 27.02.2002г. «About the statement of rules of the reference behind pension, appointments of pension and recalculation of the size of pension, transition from one pension on another...» 1; the Decision of the Ministry of Labour and social development of the Russian Federation № 16 and the Pension fund of the Russian Federation № 19па from 27.02.2002г. «About the statement of the list of the documents necessary for an establishment of labour pension and

The federal act from 17.12.2001г. № 173 FZ «about labour pensions in the Russian Federation»//the Russian newspaper, № 243,20.12.2001.

w the Decision of the Ministry of Labour and social development of the Russian Federation № 17 and the Pension fund of the Russian Federation № 19пб from 27.02.2002г. «About the statement of rules of the reference behind pension, appointments of pension and recalculation of the size of pension, transition from one pension on another according to federal acts« About labour pensions and the Russian Federation "and" About the state provision of pensions in the Russian Federation »/ the Russian newspaper, №100, 05.06.2002.

85 pensions on the state provision of pensions... »' 4). Only in case of absence of corresponding documents, the dependence fact will be established judicially.

A number of norms about an establishment of juridical facts is present and at the law of master and servant. So, for example, the employer establishes the accident fact on manufacture (the item of item 227-231 TK РФ135), the fact of causing of a material damage actions of the worker (the item of item 246-248 TK the Russian Federation)

According to «Fundamentals of legislation of the Russian Federation about a notariate» 136 enough large powers on an establishment of juridical facts notaries possess. In particular, at delivery of the certificate on the right to the inheritance under the law the notary establishes the fact of family relations. An establishment of the given facts podvedomstvenno to court also only in the absence of the corresponding documents confirming family relations. To notaries also podvedomstvenny affairs about an establishment of such specific facts, as the fact of a finding of the citizen in live and the fact of a finding of the citizen in a certain place (items 7, 8 items 35 «Fundamentals of legislation of the Russian Federation about a notariate»). Besides, to notaries podvedomstvenny affairs about finding of fact of acceptance of the inheritance in case of the admission of 6-month's term of the reference with the corresponding statement under condition of the consent of other successors who have accepted the inheritance (item 1155 GK the Russian Federation, item 71 of Bases).

The decision of the Ministry of Labour and social development of the Russian Federation № 16 and the Pension fund of the Russian Federation № 1°па from 27.02.2002г. «About the statement of the list of the documents necessary for an establishment of labour pension and pension on the state provision of pensions another according to federal acts« About labour pensions in the Russian Federation "and" About the state provision of pensions in the Russian Federation »/ the Russian newspaper, №100,05.06.2002.

sh the Labour code of the Russian Federation from 30.12.2001г. № 197-FZ//the Russian newspaper № 256, 21.12.2001.

' "" ' Fundamentals of legislation of the Russian Federation about a notariate (utv. VS the Russian Federation of the Item 02.1993г. № 4462-1)//the Russian newspaper №49, 13.03.1993.

86 Powers on an establishment of juridical facts the bodies of the REGISTRY OFFICE establishing in particular the facts of a birth and death of the person etc. possess also

Thus, in administrative, civil, labour and some other branches of law of the material variety of the norms regulating an order of an establishment of juridical facts by executive organs contains. Moreover, as it has already been noted, the operating remedial legislation supposes their establishment judicially only under condition of impossibility of application of an administrative order. Hence, under the general rule the establishment of juridical facts concerns the competence of executive organs. However in case of absence of such possibility, corresponding powers are placed on trial which in this case is engaged not in activity quite peculiar to it: does not carry out the usual role of the arbitrator, and plays a role of establishing, establishing body.

Thus, presence in branches of the substantive law of the norms regulating an establishment of juridical facts, creates preconditions for understanding of institute of an establishment of juridical facts as interbranch is material-remedial.

Complex obshchepravovymi in the literature it is accepted to name institutes what comprise norms not one, and several branches of law. So, for example, naming the law of evidence complex obshchepravovym institute, I.V.Reshetnikova proves it that general provisions of the given institute have remedial character and the Russian Federation, agrarian and industrial complex of the Russian Federation and UPK the Russian Federation contain in general parts GPK. Special norms contain not only in special parts of codes of practice, but also in substantive law branches. Such «a conglomerate of norms from the different

87 branches of law », in its opinion, testify to complex character of the law of evidence and allows to name its complex legal институтом137.

On a question on presence of the given lines in legal regulation of institute of an establishment of juridical facts it is difficult to give the unequivocal answer though for a number of other institutes of special proceeding the given conclusion can be made without any doubts.

It is obvious complex obshchepravovoj character of such institute of special proceeding as disposal of legal proceeding about a recognition of the citizen is unknown absent or the announcement of the citizen died as court actions at the permission of the given category of affairs submit not only to norms of chapter 30 GPK the Russian Federation, but also to rules of the item of item 42-46 GK the Russian Federation. Similar conclusions extend on such institutes of special proceeding, as disposal of legal proceeding about special disability of the citizen and its recognition incapacitated (chapter 31 GPK the Russian Federation), the announcement of the minor completely capable (chapter 32 GPK the Russian Federation), etc.

The specified lines are inherent also in some kinds of juridical facts established as special proceeding. Hardly it is possible to establish the fact of family relations without dependence from the norms of the family legislation fixing concept of the given term. Finding of fact of acceptance of the inheritance and a place of opening of inheritance in a separation from norms of the item of item 1115, 1155 parts Z GK the Russian Federation is impossible.

At the same time application of the similar wide approach can lead to premature conclusions about complex character and many other things of remedial institutes as the permission of any civil case occurs to application and on the basis of rules of law of the material.

Reshetnikova I.V.course of the law of evidence in the Russian civil legal proceedings. - M: NORM, 2000г. - With. 18-19, 21-23.

88 In this connection interesting the approach to understanding of the complex legal institutions, the offered I.G.Medvedevym is represented.

Investigating a question on a place of the law of evidence in the Russian and French legal systems, the author comes to conclusion, that at the permission of a question on the legal nature of rules about proofs it is necessary to start with functions of these norms. If norms influence not only technology, proving procedure, but also establish consequences of the events, essential characteristics of the most material legal relation it is possible to believe that is the rules of substantive law.

Thus, I.G.Medvedev suggests to proceed at definition of the nature of the rule of law not from its place in the legal system and, especially, in legislation system and to consider its legal action on legal relation. With reference to norms about proofs, the author does a conclusion that consequences of norms about the proofs located in norms of the substantive law (for example, a rule about consequences of non-observance of the simple written form of the transaction), can simultaneously arise and in sphere of evidentiary activity, and in normal conditions of the civil circulation ".

Applying the given positions at research of norms about an establishment of juridical facts, it is possible to draw a conclusion on that, the majority of norms of the substantive law really have double effect. On the one hand, they influence material legal relations, establishing legal effects of an establishment of this or that fact. On the other hand, these norms in many respects regulate procedure of an establishment of the given facts, in particular, define jurisdiction of affairs about an establishment of juridical facts, a circle of interested persons,

Medvedev I.G.written evidence in civil procedure of Russia and France. Diss.... kand. jurid sciences. - Ekaterinburg, 2003. - With. 28-35.

89 ultimate fact on business. Hence, it is possible to name institute of an establishment of juridical facts complex obshchepravovym institute.

Generalising stated, it is possible to draw following conclusions:

1. Set material and the rules of procedure regulating an establishment of juridical facts by vessels and others jurisdikiionnymi by bodies, represents

The independent legal institution as answers two standard criteria of independence legal институтов1 9:

It is characterised by presence of specific system of the norms which are among themselves in indissoluble system communication;

- Regulates a concrete kind of legal relations - relations on the fact-finding, having the jural significance.

Besides, independence of considered institute proves to be true also certain specificity of its other elements, in particular, a method and main principles of legal regulation.

We believe, that individuality of a method of regulation is shown in a combination of imperative and optional regulation that is caused by presence of norms of considered institute as in branches of the law of procedure which peculiar optionality, and in the administrative law, differing by an imperative method of regulation.

As to principles of legal regulation of institute of an establishment of juridical facts for them certain features also are characteristic. First, in legal regulation

t See, for example: Alexeys S.S.general the theory of the socialist right. Vyp. I, - Sverdlovsk, 1963, - With. 214; Yakushev V - With. About concept of the legal institution//Jurisprudence, 1970, №6. - With. 67., Etc.

90 given institutes prevail interbranch principles, namely, the principle of directness, combinations ustnosti and writings of proceeding, etc. Secondly, many principles of the civil and arbitration law of procedure are shown in legal regulation of considered institute in the truncated kind. In particular, action of principles of optionality and competitiveness, remedial equality and equality of the parties is limited.

2. Institute of the fact-finding, having the jural significance,

- It is complex obshchepravovoj the institute existing, on the one hand, on a joint of adjacent remedial branches of law, and with another,

- On a joint of the right remedial and material; the institute combining norms especially remedial and norm, possessing legal influence on material legal relations.

Such understanding of institute of the fact-finding, having the jural significance is represented, that, will result in perfection of the civil and arbitration law of procedure as will give the chance for application of analogy of the right, and further will pave the way for definitive unification of the legislation in this area.

91

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A source: Chudinovskaya Natalia Andreevna. the Fact-finding, having the jural significance, in special proceeding civil and arbitral procedure. The dissertation on competition of a scientific degree of the master of laws. Ekaterinburg — 2007. 2007

More on topic § 2. An establishment of juridical facts in special proceeding:

  1. the Chapter I. Manufacture on an establishment of juridical facts in system of the law of procedure
  2. the legal remedial facts at a proceeding stage
  3. §10. Features of an establishment of some other facts having the jural significance
  4. Chapter 2. Classifications of juridical facts
  5. 1.2. Kinds of juridical facts in civil legal proceedings
  6. § 1. Theoretical bases of classification of juridical facts In the domestic law
  7. § 4. An establishment of other facts generating legal consequences in sphere of enterprise and other economic activities
  8. Rozhkova Marina Aleksandrovna. THEORIES OF JURIDICAL FACTS CIVIL AND THE LAW OF PROCEDURE: CONCEPTS, CLASSIFICATIONS, BASES OF INTERACTION THE DISSERTATION On competition of a scientific degree of the doctor of juridical science. Moscow - 2010, 2010
  9. 1.2 Judicial discretion at an establishment of actual facts of business
  10. § 3. The legal nature of classification of juridical facts in the criminally-executive right
  11. § 2. Display of essence of special proceeding in affairs about entering of corrections or changes in civil registration
  12. § 1. Special proceeding in civil and arbitral procedure: the comparative analysis
  13. the Part II. The theory of remedial juridical facts
  14. the Part I. The theory of juridical facts of civil law
  15. 2. The characteristic of subject structure legal relation, skladyvajuyoshchihsja between an economic society and its participants, the juridical facts indulging at the heart of their occurrence.
  16. the Part III. Conceptual bases of interaction of theories of juridical facts civil and the law of procedure
  17. Establishment special legal persons
  18. 3.3. Features of a stage of proceeding at disposal of legal proceeding about application of forced measures of medical character
  19. RYABOV ALEXANDER EVGENEVICH. JURIDICAL FACTS In the LEGAL REGULATION MECHANISM. The dissertation on competition of a scientific degree of the master of laws. Nizhni Novgorod - 2005, 2005
  20. §3 Establishment, reorganisation and liquidation of the special legal person