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5FEATURES OF PARTICIPATION OF THIRD PARTIES IN CIVIL PROCEEDINGS
Abstract
The paper is a comprehensive study of the legal regulation of the participation of third parties in civil proceedings in cases arising out of civil, family and housing legal relations in the Russian legislation. In this paper, we prove the feasibility of granting third parties a significant set of procedural rights and duties, allowing them to defend their interests in court, as well as enabling the court to act on their procedural activities. The paper identifies trends and prospects of development of legislation, allowing to eliminate the abuse of procedural rights of third parties, as well as reduce the negative consequences for the parties related to the long pending a decision on the case.
Keywords
civil proceedings, third parties in civil proceedings, claims litigation, litigation, procedural rights and obligations
AUTHOR
Galina Mitsyk
PhD in Law, Associate Professor head of Department of International Legal Disciplines and Customs the Tver branch of Moscow Humanitarian-Economic Institute
Tver, Russia grand- ust@maH.ru
Purpose of civil proceedings primarily aimed at protecting the interests of all disturbed subjects who were involved in the scope of the disputed legal relations: citizens, organizations, the rights and interests of the Russian Federation and its subjects, as well as other entities of civil, labor, or other legal relations.
Actors of civil process, along with the court, as well as persons of Justice Assistance, are the persons involved in the case. Among those participating in the process deserves special attention by third parties, whose participation in the extremely important and necessary for timely consideration and resolution of civil cases.
It is not uncommon participation of third parties, independent claims concerning the subject of the dispute in civil proceedings in cases arising out of civil, family and housing relations.
Third parties can learn about the legal dispute between the two parties with respect to some things, and they as well as the plaintiff and the defendant claim the subject of the dispute (in the division of marital property, a relative of one of them may declare that part of the property or all property in general to be distributed, in fact belongs to him, not disputing parties).
As an example, the civil case № 2-710 from 2010 on the division of joint property of the spouses with the participation of third parties, independent claims on the subject of the dispute (1).
Tikhonova I. I. in january 2008, addressed to the magistrate court plot number 4 Proletarian District of Tver with claims against the former spouse - Mironov A. A. sharing joint property of the spouses, consisting of a dwelling house and land.
In his claims of Plaintiff requests a division of property, consisting of a dwelling house and the land acquired during the marriage, recognizing her for / share in the right to the said property.
According to Article 34 of the Family Code, property acquired by spouses during marriage is their joint property (2).
On this basis, the plaintiff claims were filed on the division of joint property and recognition for her 1V share in the ownership of a residential house and land.
Magistrate court plot number 4 Proletarian District of Tver M. U. Rumiantseva July 24, 2009 was issued a default judgment in which the plaintiff claims have been satisfied in full. Subsequently, the defendant was canceled this default judgment.
Definition of the magistrate court plot number 4 Proletarian District of Tver on 25 March 2010 recognized Silov I. I. and Silova N. D. persons claiming independent demands on the subject is at the specified civil case, which according to the jurisdiction referred to the Proletarian District Court of Tver.
Third parties, independent claims, in a statement indicated that the claims of the plaintiff does not agree, because they believe that the said property is not owned jointly by spouses - Tikhonova and Mironov asked to recognize their right to ownership of the house and land.
In this case, a third party, independent claims, have pointed out that the disputed property was purchased at their expense. As evidence, the third parties were represented by a receipt Seller residential house and land funds for the sold properties. In the trial of the third parties referred to the fact that the acquisition of properties was carried out using the proceeds from the difference in price, the sale of one-bedroom apartment and a studio apartment acquisition in 2003. In addition, the third party was represented by the receipt of cash received Erokhin A. A. for home repairs. Also at the request of third parties in the trial were invited witnesses who testified.
Defendant - Mironov A. A. with the claims of the plaintiff and a third party, independent claims, partially agreed, pointing out that during the marriage with Tikhonov I. I. he took out a loan in the amount of 300 thousand rubles, which were aimed at the restoration of a house. In this regard, the defendant asks to recognize the third party independent claims - V share in the right to a house and land for Tikhonovoj I. I. - 1 share of the rights to such properties.
May 31, 2010 Proletarian District Court of Tver comprising the Presiding Officer Pokotilo T. C. ruled the claim Tikhonovoj I. I. satisfy the claims of a Sylow I. I. and Sylowa N. D. refuse.
In the appeal by third parties independent claims, the court decision did not agree, asked him to cancel it considered illegal and unreasonable in view of the fact that the court that rendered the decision, witnesses were declared inadmissible evidence. After examining the available materials, discussed the arguments of the appeal, having heard the explanations participants in the process, verifying the legitimacy of the court's decision in its entirety, the panel of judges considered the court's decision lawful and justified.
It is worth noting that the plaintiff stated claims of division of joint property in January 2008, and the definition of judicial board on civil cases of the Tver Regional Court was issued in September 2010. That is, from the moment of filing a lawsuit to the court decision comes into force took about 2.5 years, and the case was heard in the judicial district magistrate in the district court, and finally, in the regional court.
In the study of materials on this civil case is seen abuse of procedural rights by third parties independent claims concerning the subject matter. So, they had twice filed a claim with disabilities, will serve as the abandonment of the claim without movement, has repeatedly been declared the petition to call witnesses, to postpone the hearing of the case, moreover, in connection with their involvement in the case was reversed default judgment Judge of the World.
In this case, a third party independent claims concerning the subject of the dispute, entered already begun the process with their own requirements regarding the subject matter of the dispute.
Current judicial practice in cases involving third parties confirms that the process of accession to the third party facilitates the timely resolution of legal disputes, and also eliminates the possibility of making subsequent conflicting judgments. However, in the present case, it should be noted that the involvement of third parties not associated with the timely resolution of the dispute.
When considering the conditions of the intervention of a third party, independent claims concerning the subject of the dispute, often overlooked such an important time, as a test of a court of law of a third party to file their claims on an independent subject of the dispute. In practice, non-compliance with this rule can lead to serious errors.
Article 6 of the Convention for the Protection of Human Rights and Fundamental Freedoms guarantees everyone the trial "within a reasonable time." The purpose of this guarantee is to protect "all parties to court proceedings against excessive tightening of the judicial process. "moreover, this guarantee "emphasizes the importance of ensuring that justice is carried out without delay, could undermine its effectiveness and credibility" (3).
Thus, the value of the criterion "reasonable time" is to guarantee adjudication within a reasonable time, thereby establishing the limit of uncertainty, in which there is a person in connection with his position of civil nature or by reason of the presented criminal charge against him, which is "important for the person concerned, and from the point of view, the concept of" legal certainty "(4).
The need for participation of third parties in preparation of marriage and family affairs due to the presence of possible from their own side claims to the disputed property, as well as the legal relationship with the property rights and responsibilities of spouses. The need to involve a third party is not in doubt in the case, which is shown as an example, where arguing husband in order to reduce the composition of property to be distributed, and then the actual fixing him with her affiliation refers to the things your family (parents, brothers, sisters and others. ).Comprehensive verification of this fact is not possible without the participation of third parties in the case, who are also relatives of one of the parties.
In this case, you may find that the involvement of third parties, independent claims, was aimed at delaying the process and delay a final decision of the court for a long time. These actions had a negative impact on the welfare of the plaintiff. All of this could have been avoided if the original as possible would be fully considered the evidence presented in the case, and carefully studied the legal basis for the entry of third parties in a civil action with their own requirements and there is a real legal interest in the case.
As a result, in order to avoid similar mistakes - amendment of the Civil Procedure Code of the Russian Federation Article 6.1 regulating a reasonable time for trial and execution of the judgment. In addition, Article 3 of this Code to supplement the rules to apply to the court for violation of the right to trial within a reasonable time or the right to the execution of judgments within a reasonable time. In previous editions of this feature is not available (5).
In the case, if a third party, independent claims, indeed there would be legal grounds to claim the subject of the dispute, then, if there is admissible evidence, declared their claims would be satisfied wholly or partly by the court. At the same time, do not bring them to trial, of course, would affect their interests.
In accordance with the above it can be concluded that the introduction of a third party in the process between the original parties to the independent claims of a legally valid way to protect the rights of independent third parties.
Considering the involvement of third parties, independent claims. should focus on the characterization of third parties not making independent claims concerning the subject of the dispute on certain categories of civil cases.
The person interested in the case, is not always separate requirements for dispute. It might be interested in the outcome of the process to the extent that the decision on the dispute between the parties may be prejudging (prejudicial) value for the relationship between such person and one of the parties in the process. Therefore, the law establishes the possibility of participating in a strange process of third party without independent claims on the subject of the dispute. Such a person can start at the beginning of the process on the side of the plaintiff or the defendant on his own initiative or may be held on the initiative of the court and the parties involved in the case.
In the theory of civil procedure it is assumed that a third party without independent claims is substantive legal relationship only with the person on whose behalf it acts (6).
Third parties not making independent claims concerning the subject of the dispute is often invited to participate in the process in cases of alimony, or in cases of reducing the amount of maintenance.
An important role is played by the question of bringing to participate in the case of third parties. The judge in the course of preparing the case for trial or the court in the proceedings, finding that the defendant pay alimony by the court to the other children, or they made payments on other executive documents required to attract interested persons to participate in the proceedings as third parties on the side defendant.
In paragraph 11 of Resolution of the Plenum of the Supreme Court of the Russian Federation "On application by the courts of the Family Code of the Russian Federation in cases of paternity and alimony" from 25.10.1996 № 9 also clarifies that if the preparation of the case on the claim for alimony for trial or the proceedings will be shown that the defendant pay alimony by the court or they made payments on other executive documents, interested parties shall be notified of the time and place of the proceedings (7).
Third parties on the side of the defendant should be recognized all interested persons in whose favor to make deductions from wages of the defendant on the basis of a judgment or other court orders. If the defendant has already paid on the basis of a court-ordered child support from another marriage, the mother of these children should be brought in as a third party without independent demanded on the side of the defendant, as a new solution for alimony affect the size of the content to be paid to her children. Similarly, should decide on the involvement of third parties in cases where a defendant has recovered maintenance for the others.
The participation of a third party in cases of claims for recovery of child support, for a decrease the amount of maintenance is not associated with recourse relations. His interest lies in the fact that by engaging in the process of the dispute between the parties in a timely manner to prevent the infringement of their rights, to prevent deterioration of their situation, etc.
Considering the peculiarity of such claims, which consists in the fact that they can cover a desire to reduce the amount already awarded alimony, not engaging in this case to the case of third parties may serve as grounds for the annulment of the judgment.
Third parties not making independent claims concerning the subject of the dispute is often invited to participate in the process in cases of alimony, or in cases of reducing the amount of maintenance.
As an example worthy of interest ruling in the case number 2-314 / 2011 alimony received Nelidovskijj City Court of Tver Region 6 June 2011 (8).
Having examined in open court appeal Sivachuk M. A. the decision of the magistrate court plot, which the claims Sivachuk M. A. to Sivachuk N. I., third party Sivachuk E. A. alimony refuse.
Sivachuk M. A. filed a lawsuit against the Sivachuk N. I., third party Sivachuk E. A. alimony. In support of their claims the plaintiff relied on the fact that between her and the defendant entered into a marriage; married they had a child who is dependent on her. The defendant evades the content of their child's financial aid in its content has not. The defendant has a child from his first marriage, to the content of which is based on the court order the defendant pays alimony in the amount of 1 /4 of the salary. In view of these circumstances the plaintiff recover from the defendant requested monthly for the maintenance of their child alimony in the amount of 1 /6 of all types of income.
The defendant did not object to satisfy the claims that the court regarded as an admission of the claim. The court recognized the claim by the defendant is not accepted, the case was considered on its merits.
At the hearing of a third person Sivachuk E. A. objected to the satisfaction of the plaintiff's claims, stating that the plaintiff evidence that the defendant did not provide material assistance for the maintenance of her child is not represented. The plaintiff and the defendant in a registered marriage, registered at the same residence, both work, the last time she saw them together in May 2010, which proves the fact that they are living together and maintaining a common household, and, consequently, the total child. Handling of this claim indicates an intention to further reduce the amount of alimony exacted for the maintenance of her daughters, as required by law. As in meeting the stated requirements of the plaintiff would be prejudiced the rights of her daughter, she adamantly opposed the plaintiff's claim, requests to dismiss the data requirements.
Magistrate decided the above judgment. The appeal Sivachuk M. A., disagreeing with the Resolution solution, asking the decision of the judge to cancel and make a new decision on the case, it granted the application requirements to recover from the defendant's child support in the amount of 1/6 of all types of income. In the study indicated that the court incorrectly identified the circumstances relevant to the case. She does not agree with the conclusion of the court that if the spouses Sivachuk married, they are seen together, it means that they are a common household and contain the child, and therefore grounds for enforcement of alimony is not available. Family Code does not put the question of alimony for minor children dependent on that? Is it in his parents' marriage, they spend time together. In addition, the court's findings do not correspond to the circumstances of the case. The court concluded that the defendant equally it contains a child, but the testimony proved otherwise. At the hearing Sivachuk MA supported the arguments of the appeal and requested to meet its requirements.
Third person Sivachuk EA submitted written objections to the appeal Sivachuk M. A., in which he asked to leave the decision of the magistrate unchanged, and the appeal Sivachuk M. A. - Without satisfaction. Considers that the treatment Sivachuk M. A. with the claim of the plaintiff proves the intention to improve their position at the expense of her child, as the defendant in the future will have the right to file a claim to reduce the amount of child support for the maintenance of her daughter than to be materially prejudiced its rights.
After hearing the explanations of the persons involved in the case, having examined the written evidence, case materials, having heard the witnesses, the court comes to the next. Magistrate, allowing the plaintiff stated requirements, came to the conclusion that the court hearing is not established grounds for enforcement of alimony from the defendant in favor of the plaintiff on the content of a joint child. In this case, the magistrate proceeded from the fact that the evidence of the circumstances relied upon by the plaintiff is not represented, the plaintiff and the defendant in a registered marriage, registered with the child at the same address, the defendant lives with his family, has a shared household with the plaintiff.
Meanwhile, the findings of the appellate court about the circumstances of the case at the retrial did not coincide with the findings of the magistrate made in the impugned judgment.
As can be seen from the content of the statement of claim Sivachuk M. A. and explanations given to it in the appellate court, the defendant does not provide funds for the maintenance of their common minor child, child support agreement between the plaintiff and the defendant is absent. These circumstances are confirmed by the testimony of witnesses.
At a resolution of the plaintiff's claims legally significant fact is that the defendant did not provide the content of the minor son. The defendant and the third party did not present evidence to refute the above circumstances. In this case, the defendant did not dispute the fact that has no material assistance in the maintenance of his son.
Since alimony is the only source of ensuring the existence of minor children as disabled and dependent parents because of their age, given an explanation regarding the plaintiff's failure to provide the defendant funds for the maintenance of their child, the evidence as a whole, based on the need to protect the interests of the child, the court considers the claim Sivachuk MA alimony based on the law.
At a resolution of the plaintiff stated requirements such circumstances as the fact that the plaintiff and the defendant are living together, married, with a child registered at the same address are not legally significant.
Under such circumstances, the decision of the judges shall be canceled due to the wrong definition of legally significant circumstances, application of substantive law with the production of new solutions to satisfy the claims of the plaintiff Sivachuk M. A.
The Court decided the decision of the judicial district judge in a civil case for alimony and decide to cancel a new solution - a claim Sivachuk M. A. to Sivachuk N. I. alimony suit.
Third parties not making independent claims concerning the subject of the dispute are often involved in cases of compensation for harm caused by a source of increased danger. The basis of their participation in the process is usually possible recourse of the person on whose side the third party acts.
A common reason for bringing in the process of third parties is a right of recourse. The court's decision may be the basis for a new action in a different process. For example, under Article 1081 of the Civil Code of the Russian Federation entity to compensate for damage caused by another person (employee in the performance of his official job or any other job duties a person driving a vehicle, etc.), has the right of recourse (regression) to this face.
Financial liability direct tortfeasor (the worker) to their employer provided for in Article 238 of the Labor Code of the Russian Federation (9).
This determines the direct participation in the process of tortfeasors between the victim and the organization as a third party without independent claims concerning the subject of the dispute.
Participating in the side of the defendant, the third party may exercise the protection of their interests in two ways. It can help get rid of the defendant liable for the claim, if the defendant cites the lack of guilt, that the damage was caused by force majeure or intent or gross negligence of the victim. Third person, participating in the case, may prove the absence of guilt in the actions that would exclude the possibility of satisfying recourse. Case study shows that in cases of compensation for harm when the subject of responsibility to the victim and direct tortfeasor - different faces, the courts tend to attract the latter as a third party without independent claims concerning the subject of the dispute (10).
According to M. A. Bithynia, a third party must be the defendant, together with the owner of the source, and the owner of the right of recourse to the source of that person
on anything not based, as a third party with the owner of the source in the relationship is not a member of obligation and not associated with mutual rights and obligations (11).
Cases in the process of attracting material legal entities as third parties, is not making independent claims concerning the subject of the dispute are also provided in the other regulations governing the various types of legal recourse (for example, Article 53 of the Federal Law "On Mortgage (Pledge) property") (12). Engaging in the process of third parties may be associated not only with recourse, there may be other grounds.
Appellate review on the synthesis Moscow district court of Tver civil cases in the first half of 2012, found that the magistrates are often allowed to incorrect application of substantive and procedural law in the resolution of civil cases for instance I (13).
In accordance with Article 148 of the Civil Procedure Code of the Russian Federation, the resolution of the question of the composition of the persons involved in the case, and other stakeholders is one of the tasks of preparing the case for trial. Meanwhile, magistrates, examining and resolving civil cases, do not determine the number of persons whose interests may be affected by legal disputes without involving participation in the case of all stakeholders.
Meanwhile, the participation of third parties not making independent claims concerning the subject of the dispute, in the process varied. Their involvement helps in speedy resolution of the dispute between the litigants and the imposition of a fair and informed decision.
The participation of a third party, independent claims concerning the subject of the dispute, for certain categories of cases, it is important for making fair and accurate solutions.
With the participation of third parties, clarified the necessary additional evidence in the case, without which it is impossible to establish the truth of the case. In addition, participating in the process with the help of third parties can determine the legitimacy of the actions of the parties, as well as to find out their real intentions with which they made their demands and stated their position on the case.
Also noteworthy is the fact that the involvement of third parties in civil procedure determines the possibility or the lack of it in subsequent civil litigation related to claims concerning the subject of the dispute.
The purpose of participation in a third party without independent claims - to prevent adverse consequences for themselves a court decision. Third parties not making independent claims can engage in the process on their own initiative, be involved in the case at the request of a party or on the court's initiative. Their entry (or attraction) is allowed during the entire proceedings until the decision by the trial court decision.
Lack of own requirements does not mean lawlessness: these people have all the procedural rights necessary to protect their rights and interests associated with this process. However, they cannot change the base or the subject of the claim, increase or decrease the size of the claim, to drop the case, to recognize the claim or to reach an amicable agreement, to enforce the judgment, as well as to file a counterclaim.
It seems necessary to amend Article 42 of the Civil Procedure Code of the Russian Federation "Third parties making independent claims concerning the subject of the dispute" - namely, make the following changes in part 1 of this article: "Third parties making independent claims concerning the subject of the dispute, may start the case before the court order by the court of first instance after set their legal basis of the intervention. They enjoy all the rights and bear all the responsibilities of the claimant. For persons independent claims concerning the subject of the dispute, the judge shall issue a ruling on the recognition of third parties in the present case, or to refuse to recognize them by third parties, to which may be filed by a private complaint ."
It is possible to supplement this article as follows: "In the event that the entry of third parties independent claims concerning the subject of the dispute, contributes to a
significant extension of procedural terms (more than 3 months), the judge must consider the allocation of third-party claims, independent claims concerning the subject dispute, in a separate proceeding."
These changes and additions to the article in question, will eliminate the abuse of procedural rights of third parties, as well as reduce the negative consequences for the parties related to the long pending a decision on the case.
Participation of third parties, independent claims, it is necessary and in those cases where the interests of juveniles appear directly (for example, the case for alimony). In particular, courts should carefully correlate all the circumstances of the case with the request and consider in detail the evidence base. For example, in an exemplary case of the recovery of maintenance for a minor child clearly has a vested interest as a plaintiff and a defendant in reducing the amounts levied alimony, which is aimed directly against the interests of a third party.
Third parties, like other members of civil procedural relations, endowed with considerable complex procedural rights and duties, allowing them to defend their interests in court, as well as enabling the court to act on their procedural activities. In addition, third parties involved in the case, can actively influence the development of civil procedure in a particular case, the right to express and justify their opinions during the trial of all issues arising during the process, including by filing complaints. Given their interest in the outcome of the case in civil procedure legislation provides a wide range of their powers. In this regard, the institution of a third party should be given special attention.
REFERENCES
1. The case № 2-710 / 2010 // Archive Proletarian District Court of Tver.
2. The Family Code of the Russian Federation of 29.12.1995 № 223-FZ (ed. By 04.11.2014) // Meeting of the legislation of the Russian Federation, 01.01.1996, № 1, Article 34.
3. The European Convention on Human Rights on November 4, 1950 and the Protocols thereto, Article 6 // Meeting of the legislation of the Russian Federation. 1998. № 20.
4. Commentary on Article 6 of the European Convention for the Protection of Human Rights and Fundamental Freedoms of 4 November 1950 N. Mole and K. Harbi // www.creditors.chat.ru/EC_article6_comm.html
5. On Amendments to Certain Legislative Acts of the Russian Federation in connection with the adoption of the federal law on compensation for breach of the right to trial within a reasonable time, or right on the execution of the act within a reasonable time: Federal Law of the Russian Federation dated April 30, 2010 № 69-FZ // Rossiyskaya Gazeta May 4, 2010 № 5173
6. Civil procedure: Proc. for universities / ed. M. K. Treushnikova, M., 2007. P. 588.
7. On application by the courts of the Family Code of the Russian Federation in cases of paternity and alimony: Plenum of the Supreme Court of the Russian Federation of 25.10.1996 № 9 (ed. By 06.02.2007) // Bulletin of the Supreme Court of the Russian Federation, № 1, 1997.
8. The civil case № 2-314 / 2011 // Archive Nelidovsky City Court of Tver region.
9. The Labour Code of the Russian Federation № 197-FZ of 30.12.2001 (ed. By 04.06.2015) Article 238 // Russian newspaper, № 256, 31.12.2001.
10. E.A. Borisova, S. A. Gerasimenko, BA Peas and others. Commentary on the Resolution of the Plenum of the Supreme Court of the Russian Federation / Ed. V. M. Zhuykova. - M .: NORMA, 2008. S.412.
11. Civil proceedings in Russia. / Ed. MA Bithynia. M., 2005. P. 215.
12. On Mortgage (mortgage): The Federal Law of 16.07.1998 N 102-FZ (ed. By 06.12.2011) // Russian newspaper, № 137, 22.07.1998.
13. Help generalization appellate review of the Moscow district court of Tver civil cases in the first half of 2012
