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the Conclusion

The carried out dissertational research allows to draw following conclusions.

1. The maintenance of special proceeding for civil and arbitral procedure does not coincide. In civil procedure special proceeding represents the developed subsystem of branch of law including a number of various institutes, including - institute of the fact-finding, having the jural significance.

As to arbitral procedure this branch of law understands as special proceeding has exclusively put about an establishment of juridical facts.

On the basis of the analysis of the legislation and existing scientific discussion, the author has come to conclusion, that the section of IV agrarian and industrial complex of the Russian Federation źFeature of manufacture in arbitration court on separate categories of affairs╗ at all does not consolidate a category of affairs of special proceeding. Each of these categories represents independent institute of the arbitration law of procedure as does not answer the basic characteristic lines of special proceeding: in particular, absence of issue in law and contending parties is not peculiar to them.

2. The comparative analysis corrected disposals of legal proceeding about an establishment of juridical facts in civil and in arbitral procedure allows to draw a conclusion on their identity. The revealed distinctions have insignificant value and are caused only by character of the established facts. So, those facts are in many respects similar, the instructions on which possibility of an establishment contain in codes of practice. Requirements to the form and the maintenance of the statement for a juridical fact establishment are similar.

207 the conditions which presence of set gives possibility of an establishment of the juridical fact etc. Similar unity of legal regulation Coincide creates preconditions for understanding of institute of an establishment of juridical facts as special legal mode for civil and arbitral procedure, as interbranch remedial institute.

The further analysis only confirms the put forward thesis. In a science of the law of procedure it is not challenged, that by consideration and the permission of affairs, both general jurisdiction courts, and arbitration courts carry out ' civil legal proceedings; arbitration legal proceedings as that are not provided by the Constitution of Russia. Thus, the unity of civil legal proceedings also unequivocally testifies to interbranch character of institutes of the arbitration and civil law of procedure.

3. Application at the analysis of institute of an establishment of juridical facts of the approach offered by I.V.Reshetnikovoj and further of the developed I.G.Medvedev, has allowed to draw a conclusion about complex obshchepravovom character of investigated institute.

So, during research it has been established, that norms about an establishment of juridical facts penetrate a fabric of branches of the substantive law. Moreover, the majority of these norms of the substantive law have źdouble effect╗: they simultaneously regulate procedure of an establishment of juridical facts (that is, have remedial lines) and attract the-legal effects defined financially (that speaks about their material character). Thus, a similar combination especially rules of procedure and norms, definitely influencing

208 on material legal relations, testifies about complex obshchepravovom character of institute of an establishment of juridical facts.

4. The analysis of institute of an establishment of juridical facts has allowed to draw a conclusion on its independence. The similar conclusion is based that the given legal institution answers two standard criteria of independence of legal institutions:

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.

5. During research it has been revealed, that the establishment of juridical facts is characteristic for all kinds of civil legal proceedings, that, first of all, is caused by its unity. At the same time, within the limits of the adversary proceeding and manufacture on affairs from public legal relations, the establishment of juridical facts is not the end in itself, the Given facts are included only into the ultimate fact on business. As to new kinds of manufactures (chapter 45-47 GPK the Russian Federation and 30-31 agrarian and industrial complexes of the Russian Federation) 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 of statements of interested persons. In special proceeding an establishment financially-legal

209 juridical facts can be necessary for the applicant in itself. It causes the specific requirements shown to legislators to those conditions which presence of set does possible a juridical fact establishment in special proceeding: presence at the applicant of a definite purpose, absence of issue in law, etc.

6. On the basis of the analysis of discussion existing in a science of "indisputability" of special proceeding, in the dissertation the conclusion is drawn, that the understanding of special proceeding as indisputable is possible only in the presence of a number of preliminary reservations.

First, we believe, that the indisputability should be understood only as absence of dispute on the subjective substantive law, but not absence of dispute on existence of the required fact. As to argumentativeness of the fact in our opinion, it is quite admissible in special proceeding affairs.

Secondly, 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 is characteristic for many affairs of special proceeding, in particular, affairs about special disability of the citizen etc.

7. The analysis of judiciary practice of arbitration courts and general jurisdiction vessels on affairs about finding of fact of possession and using real estate has allowed to reveal certain imperfection of legislative regulation in this area. Considering statements for finding of fact of possession and

210 usings real estate, courts quite often actually do a conclusion about presence or absence at the applicant of the property right to disputable property that is inadmissible within the limits of special proceeding. We believe, that the ripened problem is caused by the following.

According to the operating Civil code (a part the first) and to the Federal act źAbout the state registration of the rights to real estate and transactions with it╗, the property right to real estate comes under to the state registration. Thus the Law provides conducting the uniform open state register of real estate, the information from which can be received at any moment. Proceeding from the finding of fact of possession stated possibility and usings real estate for the real estate got after introduction in operation of law źAbout the state registration...╗ Raises the proved doubts. However the specified category of affairs keeps the urgency for real estate, the property right on which has arisen at the person before introduction in operation of law.

On the given question in the literature the uniform position that has caused necessity of the further working out of a problem is not developed. The root of contradictions, in our opinion lays in various understanding of the term źpravoustanavlivajushchy the document╗. If to understand under pravoustanavlivajushchimi documents what confirm an accessory to the person of real estate on the property right, instead of registration of the granted right it is possible to speak about possibility of finding of fact of possession of real estate, irrespective of date of its acquisition. It is important only that at the applicant have been lost primary pravoustanavlivajushchie documents.

211 Subsequently the establishment of the given fact can form the basis for property right registration.

However it is represented, that the similar statement would be premature. According to item 131 GK the Russian Federation, the rights to real estate come under to obligatory state registration and arise from the moment of such registration. Accordingly, at finding of fact of possession and using property, the right on which has not been registered when due hereunder, courts will involuntarily confirm presence of the right that is inadmissible within the limits of special proceeding. Thereupon we believe, that pravoustanavlivajushchim the document on real estate is nevertheless the certificate on the state registration of the right. In case of loss of such certificate, necessity of the tribunal of the juridical fact of possession really does not arise, as on the basis of data of the uniform state register of the rights to real estate the person the certificate duplicate can be always received.

Thus, finding of fact of possession and using real estate, the right on which has arisen at the applicant after introduction in action FZ źAbout the state registration...╗ Has really lost an urgency; possibility of an establishment of the considered fact for today remains only for property, the property right on which has arisen at the applicant to introduction in operation of law źl of the state registration of the rights to real estate and transactions with it╗, has been registered when due hereunder, however confirming documents at the applicant are lost.

In this connection, it is represented expedient to speak not about the possession fact as that, and about źthe fact of registration of the right to real estate during certain time and in a certain place╗

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As to other questions connected with the rights to real estate, they come under to consideration within the limits of the adversary proceeding.

8. The analysis of operating edition of item 4 ch. 2 items 218 AK the Russian Federation has shown, that the arbitration code of practice speaks only about establishment possibility only the fact of primary registration of the legal person or the individual businessman. At the same time, it is known, that any change of the status of the legal person: its reorganisation, liquidation and even modification of constituent instruments, also comes under to the state registration. Possibly, the establishment of corresponding juridical facts also podvedomstvenno to arbitration court, but should be made within the limits of item 4 ch. 2 items 219 of agrarian and industrial complex of the Russian Federation, that is - as other facts generating legal consequences in sphere of enterprise or other economic activities. Further, we believe expedient directly to include a corresponding category of affairs in the list of item 218 of agrarian and industrial complex of the Russian Federation.

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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 Ś 2007. 2007

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