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Theory of everything. Civil Procedure Code of the Russian Federation Judicial practice under Article 40 of the Civil Procedure Code of the Russian Federation

Part 1 of Article 40: a claim may be brought by several plaintiffs or against several defendants. Hence, procedural complicity- this is a plurality of persons on the side of the plaintiff or defendant.

Based on the subject composition, 3 types of complicity can be distinguished:

Active – several plaintiffs and one defendant

Passive – one plaintiff and several defendants

Mixed – several plaintiffs and several defendants.

It is also possible to distinguish types of complicity based on the basis of its occurrence. Part 2 of Article 40 of the Code of Civil Procedure contains 3 grounds for complicity:

The subject of the dispute is common rights and the obligations of several plaintiffs or defendants (common subject matter of claims). For example, the disputed item belongs to several persons and they file a joint claim to recover this item from the defendant.

The rights and obligations of several plaintiffs or defendants have one basis (common basis for the claim). For example, due to the fault of one person, an accident occurred, as a result of which several vehicles were damaged. The victims are suing for damages. Each plaintiff has their own claims, but they have one basis (road accident).

The subject of the dispute is the homogeneous rights or obligations of several plaintiffs or defendants (homogeneity of claims). For example, according to labor disputes. Mass dismissal of workers, massive delay in salaries, etc. Each plaintiff has his own claim, his own separate cause of action, since employment contract is concluded individually with each employee. But at the same time, all requirements have the same legal nature and are homogeneous.

Conclusion: in the first 2 cases, procedural complicity is materially conditioned, i.e. it is caused by the multiplicity of persons in a controversial material legal relationship. In the third case, procedural complicity does not have direct material prerequisites and is only procedurally conditioned, i.e. it pursues the goals of procedural economy in order to consider several similar cases more quickly and equally.

In addition, materially determined complicity can also be divided into 2 types:

Mandatory (necessary)

Optional (possible).

By general rule, due to the principle of discretion, the plaintiff determines the identity of the defendant and no one can be forced to bring a claim against a specific plaintiff. Because of this, as a general rule, participation is optional and depends on the will of the plaintiff.

In addition, involving accomplices against the will of a party can significantly violate its interests. In particular, the more participants in the process, the greater the amount of legal costs and therefore the party bears the risk of having the entire amount of these costs imposed on it. The more participants in the process, the greater the risk that one of them will not be able to appear for a valid reason, and this will lead to the delay of the case and violation of the deadlines for its consideration. In addition, Part 3 of Article 40 of the Code of Civil Procedure: after attracting an accomplice, the preparation and consideration of the case begins from the very beginning.

Therefore, as a general rule, the court must ascertain the plaintiff’s consent to the involvement of other accomplices. In particular, for example, Article 323 of the Civil Code: joint liability of debtors, in which the creditor can make claims either against one debtor, or against several debtors, or against all debtors. Consequently, only the plaintiff determines from whom to collect the debt.

Article 40 of the Code of Civil Procedure does not specify cases of mandatory involvement. But in Art. a general criterion has been established regarding the compulsory nature of complicity. The court involves a co-defendant if without this it is impossible to consider the case due to the nature of the disputed legal relationship. Clause 4, Part 4, Article 330 of the Code of Civil Procedure stipulates that a court decision is subject to unconditional cancellation if the court has made a decision on the rights and obligations of persons not involved in the case. Therefore, if a court decision directly affects the interests of other persons and directly affects their rights and obligations, then the court must involve these persons in the case so that the decision is not overturned.

By virtue of Article 40 of the Code of Civil Procedure, a court decision to attract an accomplice or to refuse this is not subject to appeal. Therefore, it is the court that decides the issue of complicity. Therefore, in any controversial situations, the court must involve co-defendants, since the court’s decision to involve these persons cannot be appealed, and if these persons are not involved, the decision can be canceled under Article 330 of the Code of Civil Procedure.

Mandatory involvement: directly in the Civil Procedure Code there is only one (Article 442) - claims for the release of property from seizure and its exclusion from the inventory. The defendants are the claimant and the debtor. If the seizure of property is associated with confiscation, then the defendants are the convicted person and the relevant government agency that carries out the confiscation. If the seized property has already been sold, then the acquirer acts as the 3rd defendant.

Resolution of Pl.VS dated February 24, 2005. No. 3 “On judicial practice in cases of protection of honor, dignity of citizens and business reputation citizens and legal entities." If defamatory information is disseminated in the media, then the defendant is the editorial office as a legal entity. If this is an opinion piece, then the second defendant is the author of the article. If the article contains a link to a source of information, then the 3rd defendant may be this source. If the editorial board does not have the rights of a legal entity, then the defendant is the founder of the media.

If a transaction is concluded with a plurality of persons, then all these persons are defendants in a claim to declare it invalid or terminate the transaction, or to change its terms. In particular, Article 688 of the Civil Code: upon termination of a rental agreement for residential premises, all citizens living in this premises are subject to eviction (complicity). Disputes about inheritance: if a person claims an inheritance, then all other heirs by law and will are co-defendants, since if the claim is satisfied, the share in the inheritance will be reduced or they will be deprived of the inheritance.

In all these cases we're talking about on mandatory complicity on the side of the defendant, i.e. Only passive participation can be divided into obligatory and optional. Active participation is not divided into types and can only be optional. Accordingly, if the nature of the dispute reveals the interest in the case of other persons whose rights have been violated, then the court must notify them of the resulting process and explain the right to join the case as a co-plaintiff. These actions are carried out at the stage of preparing the case (clause 4.6, part 1, article 150 of the Code of Civil Procedure).

1. A claim may be brought to court jointly by several plaintiffs or against several defendants (procedural complicity).

2. Procedural complicity is allowed if:

1) the subject of the dispute is the common rights or obligations of several plaintiffs or defendants;

2) the rights and obligations of several plaintiffs or defendants have the same basis;

3) the subject of the dispute is homogeneous rights and obligations.

3. Each of the plaintiffs or defendants in relation to the other party acts independently in the process. Accomplices may entrust the conduct of the case to one or more of the accomplices.

If it is impossible to consider the case without the participation of the co-defendant or co-defendants due to the nature of the disputed legal relationship, the court invites him or them to participate in the case on its own initiative. After the involvement of a co-defendant or co-defendants, preparation and consideration of the case are carried out from the very beginning.

Commentary to Art. 40 Code of Civil Procedure of the Russian Federation

1. Procedural participation is the participation in the same process of several plaintiffs or defendants, whose rights, claims or obligations are not mutually exclusive.

2. Most often, scientists call the basis of civil procedural complicity the plurality of authorized and/or obligated subjects of material legal relations, as well as the homogeneity of the substantive legal claims of one authorized person to several obligated persons, or vice versa.

3. The claims of several persons and/or against several persons may be combined into one claim by the interested parties themselves or by the court.
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By analogy with the interpretation of previously existing civil procedural rules. See: Gros L. Institute of procedural complicity: the connection between procedural and substantive law // Ros. justice. 1998. N 3.

4. Keeping in mind that joining the appeal does not have the nature of an independent appeal court decision and is not limited by the period provided for in Part 2 of Art. 321 of the Code of Civil Procedure of the Russian Federation, an application to join the complaint with accomplices and third parties acting in the process on the same side as the person who filed the appeal may be filed together with the appeal, as well as independently, including during the consideration of the case by the court appellate authority.

5. The possibility of complicity in civil proceedings was also mentioned in some normative legal acts other than the Code of Civil Procedure of the Russian Federation.

6. Plenum Supreme Court The Russian Federation drew attention to the fact that the involvement in the case of all persons whose ownership of the house is registered in the prescribed manner or is assumed by force of law (for example, a spouse, if the building was acquired during marriage; heirs who took possession or management of the hereditary property, but have not formalized their rights to inheritance; tax authorities and others), creates the necessary conditions for a comprehensive and complete examination of evidence, establishment of the factual circumstances of the case and the correct application of the law.
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By analogy with the interpretation of previously existing civil procedural rules. See: Resolution of the Plenum of the Supreme Court of the Russian Federation of June 10, 1980 No. 4 “On some issues of the practice of consideration by courts of disputes arising between participants in common ownership of a residential building.”

7. Complicity in civil proceedings should not be confused with complicity in criminal law.

8. Accomplices in civil proceedings participate together in legal proceedings, and do not necessarily jointly violate the rights and legitimate interests of other persons, etc.

9. See also the contents and commentary to Art. Art. 49, 150, 154 Code of Civil Procedure of the Russian Federation.

Article 320. Right of appeal

(edited) Federal Law dated 09.12.2010 N 353-FZ)

1. Decisions of the court of first instance that have not entered into legal force may be appealed on appeal in accordance with the rules provided for by this chapter.

2. The right to appeal a court decision belongs to the parties and other persons participating in the case. The right to bring an appeal belongs to the prosecutor participating in the case.

3. Persons who were not involved in the case and whose rights and obligations were resolved by the court also have the right to file an appeal.

Article 320.1. Courts considering appeals and presentations

Appeals and submissions are considered:

1) by the district court - on decisions of magistrates;

2) the supreme court of the republic, the regional, regional court, the court of a federal city, the court of an autonomous region, the court Autonomous Okrug, district (naval) military court - on decisions of district courts, decisions of garrison military courts;

3) Judicial Collegium for Civil Cases of the Supreme Court Russian Federation, Judicial Collegium for administrative matters of the Supreme Court of the Russian Federation - on decisions of the supreme courts of republics, regional, regional courts, courts of federal cities, courts of an autonomous region, courts autonomous okrugs, accepted by them at first instance; The Judicial Collegium for Military Personnel of the Supreme Court of the Russian Federation - on decisions of district (naval) military courts adopted by them at first instance; (Clause 3 as amended by Federal Law dated March 12, 2014 N 29-FZ)

4) by the Appeals Board of the Supreme Court of the Russian Federation - on decisions of the Supreme Court of the Russian Federation adopted at first instance;

5) by the appellate instance of the Moscow City Court - on decisions of this court in civil cases that are related to the protection of exclusive rights to films, including motion pictures, television films, in information and telecommunication networks, including the Internet, and for which he took preliminary interim measures in accordance with Article 144.1 of this Code. (Clause 5 introduced by Federal Law dated July 2, 2013 N 187-FZ)

Article 321. Procedure and deadline for filing appeals and presentations

(as amended by Federal Law dated December 9, 2010 N 353-FZ)

1. An appeal or presentation is filed through the court that made the decision. An appeal or presentation received directly by the appellate instance shall be sent to the court that made the decision for further action in accordance with the requirements of Article 325 of this Code.

2. An appeal or presentation may be filed within a month from the date of adoption of the court decision in final form, unless other deadlines are established by this Code.

Article 322. Contents of appeals, presentations

1. An appeal or presentation must contain:

1) the name of the court to which the appeal or presentation is filed; (Clause 1 as amended by Federal Law dated 09.12.2010 N 353-FZ)

2) the name of the person filing the complaint, presentation, his place of residence or location;

3) an indication of the court decision that is being appealed; (clause 3 as amended by Federal Law dated December 9, 2010 N 353-FZ)

4) the demands of the person filing the complaint or the demands of the prosecutor making the presentation, as well as the grounds on which they consider the court decision to be incorrect; (Clause 4 as amended by Federal Law dated December 9, 2010 N 353-FZ)

6) a list of documents attached to the complaint or submission.

2. An appeal or presentation cannot contain demands that were not stated during the consideration of the case in the court of first instance.

A reference by the person filing the appeal or the prosecutor bringing the appeal to new evidence that was not presented to the court of first instance is allowed only if it is justified in the said complaint or presentation that this evidence could not be presented to the court of first instance.

(Part 2 as amended by Federal Law dated 09.12.2010 N 353-FZ)

3. The appeal is signed by the person filing the complaint or his representative. The complaint filed by the representative must be accompanied by a power of attorney or other document certifying the authority of the representative, if there is no such authority in the case.

The appeal submission is signed by the prosecutor.

4. The appeal shall be accompanied by a document confirming payment of the state fee, if the appeal is subject to payment.

5. The appeal, presentation and documents attached to them are submitted with copies, the number of which corresponds to the number of persons participating in the case.

Article 323. Leaving appeals or presentations without progress

(as amended by Federal Law dated December 9, 2010 N 353-FZ)

1. When filing an appeal or presentation that does not meet the requirements provided for in Article 322 of this Code, when filing a complaint that has not been paid with state duty, the judge, no later than five days from the date of receipt of the complaint or presentation, issues a ruling that leaves the complaint, presentation without motion, and assigns to the person who filed the complaint, presentation, a reasonable period for correcting the shortcomings of the complaint, presentation, taking into account the nature of such shortcomings, as well as the place of residence or location of the person who filed the complaint.

2. If the person who filed the appeal or presentation fulfills the instructions contained in the judge’s ruling within the prescribed period, the complaint or presentation is considered filed on the day of its initial receipt by the court.

3. A private complaint or a prosecutor’s presentation may be filed against a judge’s decision to leave an appeal or presentation without progress.

Article 324. Return of appeals, presentations

(as amended by Federal Law dated December 9, 2010 N 353-FZ)

1. The appeal is returned to the person who filed the complaint, the appeal - to the prosecutor in the case of:

1) failure to comply with deadline the judge’s instructions contained in the ruling on leaving the complaint or presentation without progress;

2) the expiration of the appeal period, if the complaint or presentation does not contain a request for restoration of the period or its restoration is refused.

2. An appeal is also returned at the request of the person who filed the complaint, an appeal - if it is withdrawn by the prosecutor, if the case is not sent to the court of appeal.

3. The return of the appeal to the person who filed the complaint or the appeal to the prosecutor is carried out on the basis of the judge’s ruling. A private complaint or a prosecutor’s presentation may be filed against the judge’s decision to return an appeal or presentation.

Article 325. Actions of the court of first instance after receiving an appeal or presentation

(as amended by Federal Law dated December 9, 2010 N 353-FZ)

1. The court of first instance, after receiving an appeal or presentation filed within the time limit established by Article 321 of this Code and meeting the requirements of Article 322 of this Code, is obliged to send copies of the complaint, presentation and documents attached to them to the persons participating in the case.

2. Persons participating in the case have the right to submit to the court of first instance objections in writing regarding the appeal, presentation with documents confirming these objections, and their copies, the number of which corresponds to the number of persons participating in the case, and have the right to familiarize themselves with the materials cases, with received complaints, representations and objections regarding them.

3. Upon expiration of the appeal period, the court of first instance sends the case with the appeal, presentation and objections received regarding them to the appellate court.

Before the appeal period expires, the case cannot be sent to the appellate court.

Article 326. Refusal of appeals, presentations

(as amended by Federal Law dated December 9, 2010 N 353-FZ)

1. Refusal of an appeal or presentation is permitted before the court issues an appeal ruling.

2. An application for refusal of an appeal or presentation is submitted in writing to the appellate court.

3. On accepting the refusal of an appeal or presentation, the appellate court issues a ruling, which terminates the proceedings on the relevant appeal or presentation.

Termination of proceedings on an appeal or presentation due to their refusal is not an obstacle to the consideration of other appeals or presentations if the corresponding decision of the court of first instance is appealed by other persons.

Article 326.1. Refusal of the claim by the plaintiff, recognition of the claim by the defendant, settlement agreement between the parties in the court of appeal

(introduced by Federal Law dated December 9, 2010 N 353-FZ)

1. The plaintiff’s refusal of the claim, recognition of the claim by the defendant or a settlement agreement between the parties, made after the acceptance of the appeal or presentation, must be expressed in written statements submitted to the appellate court. If the plaintiff’s refusal of the claim, the recognition of the claim by the defendant, the terms of the settlement agreement between the parties were stated at the court hearing, such refusal, recognition, conditions are entered into the minutes of the court session and signed accordingly by the plaintiff, the defendant, and the parties to the settlement agreement.

2. The procedure and consequences of consideration of the plaintiff’s application to abandon the claim or the parties’ application to conclude a settlement agreement are determined according to the rules established by parts two and three of Article 173 of this Code. When accepting the plaintiff’s refusal of the claim or when approving a settlement agreement between the parties, the appellate court cancels decision made court and terminates the proceedings. If the defendant recognizes the claim and accepts it by the appellate court, a decision is made to satisfy the claims made by the plaintiff.

Article 327. Procedure for considering a case by a court of appeal

(as amended by Federal Law dated December 9, 2010 N 353-FZ)

1. The appellate court shall notify the persons participating in the case of the time and place of consideration of the complaint or appeal.

The appellate court reconsiders the case in a court session according to the rules of proceedings in the court of first instance, taking into account the features provided for in this chapter.

Persons participating in the case, their representatives, as well as witnesses, experts, specialists, translators are allowed to participate in the court hearing through the use of video conferencing systems in the manner established by Article 155.1 of this Code. (paragraph introduced by Federal Law dated April 26, 2013 N 66-FZ)

Cases in appellate courts, with the exception of district courts, are considered collegially.

2. The court hearing of the appellate instance is opened by the presiding judge, who announces what case is being considered, on whose appeal, presentation it is subject to consideration and against the decision of which court this complaint, presentation was filed, finds out which of the persons participating in the case, their representatives appeared, establishes the identity of those who appeared, checks the powers of officials, their representatives and explains to the persons participating in the case their procedural rights and obligations.

The consideration of a case in a court of appeal in a collegial manner begins with a report by the presiding judge or one of the judges. The reporting judge sets out the circumstances of the case, the content of the decision of the court of first instance, the arguments of the appeal, presentations and objections received regarding them, the content of new evidence presented to the court, and also reports other data that the court needs to consider to verify the decision of the court of first instance.

3. After the report, the appellate court hears the explanations of the persons participating in the case and their representatives who appeared at the court hearing. The first to speak is the person who filed the appeal, or his representative or the prosecutor, if he has submitted an appeal. If both parties appeal a court decision, the plaintiff will act first.

After the explanations of the person who filed the appeal, or the prosecutor, if he brought an appeal, and other persons participating in the case, their representatives, the appellate court, if there are appropriate petitions, reads out the evidence available in the case, after which it proceeds to examine the new evidence accepted by the court.

4. Upon completion of clarification of the circumstances of the case and examination of the evidence, the appellate court provides the persons participating in the case with the opportunity to speak in the judicial debate in the same sequence in which they gave explanations.

5. During each court session of the court of appeal, as well as when performing certain procedural actions outside the court session, a protocol is kept according to the rules provided for by Chapter 21 of this Code.

6. The appellate court does not apply the rules on combining and separating several claims, on changing the subject or basis of the claim, on changing the amount of claims, on filing a counterclaim, on replacing an improper defendant, on involving third parties in the case.

Article 327.1. Limits of consideration of the case in the court of appeal

(introduced by Federal Law dated December 9, 2010 N 353-FZ)

1. The appellate court considers the case within the limits of the arguments set out in the appeal, presentation and objections to the complaint, presentation.

The appellate court evaluates the evidence available in the case, as well as additionally presented evidence. Additional evidence is accepted by the court of appeal if the person participating in the case has justified the impossibility of presenting it to the court of first instance for reasons beyond his control, and the court recognizes these reasons as valid. The appellate court issues a ruling on the admission of new evidence.

2. If only part of the decision is appealed in the course of appellate proceedings, the appellate court shall check the legality and validity of the decision only in the appealed part.

The appellate court, in the interests of legality, has the right to check the decision of the first instance court in full.

3. Regardless of the arguments contained in the appeal or presentation, the appellate court checks whether the court of first instance violated the rules of procedural law, which, in accordance with part four of Article 330 of this Code, are grounds for canceling the decision of the court of first instance.

4. New claims that were not the subject of consideration in the court of first instance are not accepted and are not considered by the court of appeal.

Article 327.2. Time limits for consideration of the case in the appellate court

(introduced by Federal Law dated December 9, 2010 N 353-FZ)

1. A district court, the supreme court of a republic, a regional court, a court of a federal city, a court of an autonomous region, a court of an autonomous district, a district (naval) military court shall consider the case received on appeal or presentation within a period not exceeding two months from the date its entry into the appellate court.

2. The Supreme Court of the Russian Federation shall consider the case received on appeal or presentation within a period not exceeding three months from the date of its receipt.

3. This Code and other federal laws may establish shortened deadlines for consideration of appeals and submissions on individual categories cases in the court of appeal.

Article 328. Powers of the appellate court

(as amended by Federal Law dated December 9, 2010 N 353-FZ)

Based on the results of consideration of the appeal or presentation, the appellate court has the right to:

1) leave the decision of the court of first instance unchanged, the appeal or presentation is not satisfied;

2) cancel or change the decision of the court of first instance in whole or in part and make a new decision on the case;

3) cancel the decision of the court of first instance in whole or in part and terminate the proceedings in the case or leave the application without consideration in whole or in part;

4) leave the appeal, presentation without consideration on the merits, if the complaint, presentation was filed after the expiration of the period for appeal and the issue of restoring this period has not been resolved.

Article 329. Resolution of the court of appeal

(as amended by Federal Law dated December 9, 2010 N 353-FZ)

1. The decision of the appellate court is made in the form of an appeal ruling.

2. The appeal ruling must indicate:

1) date and place of the ruling;

2) the name of the court that issued the ruling, the composition of the court;

3) the person who filed the appeal or presentation;

4) summary the appealed decision of the court of first instance, appeals, presentations, evidence presented, explanations of persons participating in the consideration of the case in the court of appeal;

5) the circumstances of the case established by the court of appeal, the court’s conclusions based on the results of consideration of the appeal, presentation;

6) the reasons why the court came to its conclusions and a reference to the laws that guided the court.

3. When leaving an appeal or presentation without satisfaction, the court is obliged to indicate the reasons why the arguments of the appeal or presentation are rejected.

4. The ruling of the appellate court shall indicate the distribution of legal costs between the parties, including costs incurred in connection with filing an appeal or presentation.

5. The ruling of the appellate court comes into force from the date of its adoption.

Article 330. Grounds for canceling or changing a court decision on appeal

(as amended by Federal Law dated December 9, 2010 N 353-FZ)

1. The grounds for canceling or changing a court decision on appeal are:

1) incorrect determination of circumstances relevant to the case;

2) failure to prove the circumstances relevant to the case established by the court of first instance;

3) discrepancy between the conclusions of the court of first instance, set out in the court decision, and the circumstances of the case;

4) violation or misuse rules of substantive law or rules of procedural law.

2. Incorrect application of substantive law is:

1) non-application of the law to be applied;

2) application of a law that is not subject to application;

3) misinterpretation of the law.

3. Violation or incorrect application of procedural law is grounds for changing or canceling the decision of the court of first instance, if this violation led or could lead to the adoption of an incorrect decision.

4. The grounds for overturning the decision of the court of first instance in any case are:

1) consideration of the case by a court with an illegal composition;

2) consideration of the case in the absence of any of the persons participating in the case and not properly notified of the time and place of the court hearing;

3) violation of the rules on the language in which judicial proceedings are conducted;

4) the court makes a decision on the rights and obligations of persons not involved in the case;

5) the court decision was not signed by the judge or any of the judges, or the court decision was signed by the wrong judge or judges who were part of the court that considered the case;

6) absence of the minutes of the court session in the case;

7) violation of the rule on the secrecy of the meeting of judges when making a decision.

5. If there are grounds provided for in part four of this article, the appellate court considers the case according to the rules of proceedings in the court of first instance without taking into account the specifics provided for in this chapter. On the transition to consideration of the case according to the rules of procedure in the court of first instance, a ruling is issued indicating the actions that must be performed by the persons participating in the case and the time frame for their completion.

6. A decision of the court of first instance that is essentially correct cannot be canceled for formal reasons alone.

Article 331. Appeal against rulings of the court of first instance

(as amended by Federal Law dated December 9, 2010 N 353-FZ)

1. The rulings of the court of first instance may be appealed to the appellate court separately from the court decision by the parties and other persons participating in the case (private complaint), and the prosecutor may make a presentation if:

1) this is provided for by this Code;

2) the court’s ruling excludes the possibility of further progress of the case.

2. A private complaint or a prosecutor’s presentation is considered:

1) on the rulings of the magistrate - by the district court;

2) on rulings of a district court, a garrison military court - by the supreme court of the republic, a regional court, a regional court, a court of a federal city, a court of an autonomous region, a court of an autonomous district, a district (naval) military court;

3) on rulings of the supreme court of the republic, regional, regional court, court of a federal city, court of an autonomous region, court of an autonomous district, district (naval) military court - by the appellate instance of the supreme court of the republic, regional, regional court, court of a federal city, court autonomous region, autonomous district court, district (naval) military court;

4) to the rulings of the Supreme Court of the Russian Federation - by the Appeals Board of the Supreme Court of the Russian Federation.

3. Private complaints or presentations of the prosecutor are not filed against the remaining rulings of the court of first instance, but objections regarding them may be included in the appeal or presentation.

Article 332. Deadline for filing a private complaint, presentation of the prosecutor

(as amended by Federal Law dated December 9, 2010 N 353-FZ)

A private complaint or a prosecutor's presentation may be filed within fifteen days from the date of the ruling by the court of first instance, unless other deadlines are established by this Code. (as amended by Federal Law dated December 28, 2013 N 436-FZ)

Article 333. Procedure for filing and consideration of a private complaint, presentation of a prosecutor

(as amended by Federal Law dated December 28, 2013 N 436-FZ)

1. The filing of a private complaint, presentations of the prosecutor and their consideration by the court occur in the manner established by this chapter, with the exceptions and features provided for by this article.

2. The court of first instance, after receiving a private complaint, a prosecutor’s presentation, filed within the period established by Article 332 of this Code and meeting the requirements of Article 322 of this Code, is obliged to send copies of the private complaint, a prosecutor’s presentation and documents attached to them to the persons participating in the case and appoint a reasonable period during which these persons have the right to submit to the court of first instance objections in writing regarding the private complaint, the prosecutor's presentation with the attachment of documents confirming these objections, and their copies, the number of which corresponds to the number of persons participating in the case.

3. A private complaint, a prosecutor’s submission to a ruling of the court of first instance, with the exception of rulings on the suspension of proceedings in a case, on termination of proceedings on a case, on leaving an application without consideration, on satisfying or refusing to satisfy an application, presentations on the review of court decisions on a new basis discovered or new circumstances, on forced execution or refusal to enforce a decision of a foreign court, on recognition or refusal to recognize a decision of a foreign court, on recognition and execution or refusal to recognize and enforce decisions of foreign arbitration courts (arbitrations), on cancellation decisions of the arbitration court or refusal to cancel the decision of the arbitration court, to issue a writ of execution for the forced execution of the decision of the arbitration court, or to refuse to issue a writ of execution for the forced execution of the decision of the arbitration court, are considered without notifying the persons participating in the case.

Taking into account the nature and complexity of the procedural issue being resolved, as well as the arguments of the private complaint, the prosecutor’s presentation and objections to them, the appellate court may summon the persons participating in the case to a court hearing, notifying them of the time and place of consideration of the private complaint, the prosecutor’s presentation.

4. A private complaint, a prosecutor’s submission against a ruling of the court of first instance, is considered by the court of appeal within the time limits provided for in Article 327.2 of this Code, unless other time limits are established by this Code.

Article 335. Legal force of the ruling of the appellate court

The ruling of the appellate court, issued on a private complaint or a prosecutor's proposal, comes into force on the date of its issuance.

14.02.2019

(official current edition, full text Article 40 of the Code of Civil Procedure of the Russian Federation with comments)

1. A claim may be brought to court jointly by several plaintiffs or against several defendants (procedural complicity).

2. Procedural complicity is allowed if:

1) the subject of the dispute is the common rights or obligations of several plaintiffs or defendants;

2) the rights and obligations of several plaintiffs or defendants have the same basis;

3) the subject of the dispute is homogeneous rights and obligations.

3. Each of the plaintiffs or defendants in relation to the other party acts independently in the process. Accomplices may entrust the conduct of the case to one or more of the accomplices.

Commentary on Article 40 of the Code of Civil Procedure of the Russian Federation. Participation in the case of several plaintiffs or defendants

Article 40 of the Code of Civil Procedure of the Russian Federation establishes the procedural complicity of several entities on the side of the plaintiff or defendant. Such persons in civil proceedings are called co-plaintiffs or co-defendants. The basis for the emergence of procedural complicity is the presence of common material legal claims or common liability of several persons.

It is possible to identify situations where procedural participation is formal or mandatory. Formal complicity on the plaintiff’s side can arise by agreement of several plaintiffs who, having agreed, file a common statement of claim. Procedural complicity on formal grounds can be dictated only by the will of the plaintiff, who brings claims against several defendants.

Mandatory complicity arises in cases where consideration of a case without the participation of a certain person becomes impossible. Typically, an indication of the mandatory involvement of co-defendants is provided for in the law regulating disputed legal relations. An example of mandatory procedural complicity is cases arising from claims for the collection of alimony from parents. In such cases, the court is obliged to involve all adult able-bodied children as co-defendants.

It should be taken into account that procedural accomplices differ from other persons participating in the case. Thus, third parties making independent claims regarding the subject of the dispute exclude the claims of the plaintiff (). Third parties who do not make independent claims () are not the subject of a controversial legal relationship. Defendants, when combining claims in the order, differ from co-defendants in that the satisfaction of claims against each defendant is not excluded.

The principle of independence of each of the plaintiffs or defendants, enshrined in the commented article, is intended to ensure a balance of interests of each participant in the court hearing. Thus, the abandonment of the claim by one of the plaintiffs does not entail the termination of the proceedings, if there is an objection from the other plaintiffs. The recognition of a claim by one of the co-defendants does not entail similar procedural consequences for the others. When concluding a settlement agreement, the will of all co-plaintiffs and all co-defendants participating in such a case is required.

It should be noted that Article 40 of the Code of Civil Procedure of the Russian Federation establishes the rule that only co-defendants (co-defendants) can be brought into the case. The court may perform such a procedural action at the request of persons participating in the case () or on its own initiative. The issue of involving a co-defendant is resolved by a court ruling. After the involvement of a co-defendant, the deadlines for consideration of the case, established by the State Duma, begin to run again. The court may refuse to invite a co-defendant to participate in the case if his procedural participation in such a dispute is not specifically provided for by law.

Additional commentary on Article 40 of the Code of Civil Procedure of the Russian Federation

Procedural complicity is the participation in the same process of several plaintiffs or several defendants, the rights, requirements or obligations of which to respond to the claim are not mutually exclusive.

Complicity is possible both on the plaintiff and on the respondent side. In the first case we are talking about procedural co-plaintiffs, in the second - about procedural co-defendants.

The basis for complicity is the nature of the disputed material legal relationship, which consists in the plurality of either authorized or obligated persons.

Procedural complicity occurs when individuals act as its subjects on the plaintiff or respondent side. However, in the practice of considering civil law disputes, there are cases when on the side of the plaintiff or defendant, along with individuals Legal entities also participate.

Participation can be mandatory or optional. Mandatory complicity occurs in the case when the nature of the controversial material legal relationship does not allow the issue of the rights or obligations of one of the participants in the process to be resolved without involving the remaining subjects of the controversial material legal relationship in the process. Thus, compulsory participation must take place in the case of a claim by parents against their adult children in the event of their neediness or incapacity for work to recover funds for their maintenance or in the case of a claim for the eviction of all persons living together in a given living space.

Article 40 of the Code of Civil Procedure of the Russian Federation indicates cases of mandatory involvement in the process of participants in a controversial legal relationship. In some cases, the need for mandatory complicity is determined by direct instructions of the law. Thus, the contract for the transfer of residential premises into ownership includes minors who have the right to use this residential premises, living with persons to whom this residential premises is transferred into common ownership with the minors, or minors living separately from these persons, but who have not lost the right to use this residential premises premises. Therefore, in the event of a dispute related to the privatization of residential premises, all these persons must be involved as accomplices. In another case, according to paragraph 6 of Art. 18 of the Law of the Russian Federation “On the Protection of Consumer Rights”, the consumer has the right to present a demand to the manufacturer for the gratuitous elimination of defects in the product after the expiration of the warranty period, and the manufacturing organizations and the organization selling the goods must be involved as co-defendants.

When filing a claim to invalidate a certificate of right to inheritance, all heirs must be involved as partners.

The decisions of the Plenum of the Supreme Court on certain categories of civil cases repeatedly indicated the involvement of all interested parties in the process as accomplices.

As for optional complicity, it is not mandatory, since the nature of the controversial material legal relationship allows cases to be considered in relation to each of the subjects in a separate process. The grounds for optional complicity arise in the case of homogeneity of the claims considered by the court or when the claims arise from the same basis.

Procedural complicity (Article 40 of the Code of Civil Procedure of the Russian Federation) can take place both at the will of the parties and at the initiative of the court. All accomplices have the rights and obligations of the parties, and each of them acts independently in relation to the other participants. Therefore, their actions cannot harm the other party, nor can they be used to benefit the other party. The right to conduct the process on behalf of the remaining accomplices depends on their desire, when they grant the right to be a representative on their behalf in the process to one of the accomplices.

71 comments to “ Article 40 of the Code of Civil Procedure of the Russian Federation. Participation in the case of several plaintiffs or defendants”

Civil Procedure Code of the Russian Federation:

Article 40 of the Code of Civil Procedure of the Russian Federation. Participation in the case of several plaintiffs or defendants

Comments on Article 40 of the Code of Civil Procedure of the Russian Federation, judicial practice of application

Involvement by the court of defendants in the case on its own initiative

When a claim is brought against some of the defendants, the court does not have the right, on its own initiative and without the consent of the plaintiff, to involve the remaining defendants in the case as co-defendants. The court is obliged to resolve the case according to the claim that is brought, and only in relation to those defendants who are indicated by the plaintiff. Only if it is impossible to consider the case without the participation of the co-defendant or co-defendants due to the nature of the disputed legal relationship, the court invites him or them to participate in the case on its own initiative (Part 3 of Article 40 of the Code of Civil Procedure of the Russian Federation). The reasons why the court found it impossible to consider this case without the specified persons must be given in the ruling, a copy of which, together with a copy statement of claim sent to the involved persons.

When replacing an improper defendant with a proper one, it must be taken into account that the case can be considered by the same court if, taking into account the new defendant, its jurisdiction has not changed.

Cm . clause 23 of the Resolution of the Plenum of the Supreme Court of the Russian Federation dated June 24, 2008 N 11 “On the preparation of civil cases for trial”