Art. 85 ГПК the Russian Federation with comments

In the framework of civil production, there is often a need to involve an expert. Legislation establishes the duties and rights of this specialist. They are set out in Art. 85 ГПК the Russian Federation. The rights and duties of a person acting in the status of an expert are mutually conditioned. In this regard, the legislator not only consolidated them in one article, but also pointed to a real link between them. Let's consider further art. г. 85 ГПК the Russian Federation with comments 2016 .

Duties of the expert

As the art. специалист должен: 85 ГПК the Russian Federation, the expert should:

1. Accept the commission of the court, carry out a full study of documents and materials handed over to him.
2. Formulate an objective and sound conclusion. It should contain answers to questions posed to the expert by the court. The conclusion is sent to the authority that initiated the investigation.
3. Appear on the court summons to participate in the meeting and answer questions concerning the expertise carried out and conclusions reached after its conclusion.

P. 2 tbsp. устанавливаются особые правила для специалиста. 85 ГПК the Russian Federation special rules for the expert are established. In particular, if the issues before him are beyond the scope of his competence, documents and materials are insufficient or unsuitable for research and drawing up conclusions, the expert should send to the instance that appointed the procedure a motivated message about the impossibility of making substantiated and objective conclusions. Notification must be in writing. The specialist is obliged to ensure the safety of the information transferred to him. He must return the examined documents and materials to the court with an enclosure or notice of impossibility to give it.

A responsibility

If the expert fails to comply with the requirements of the authority that ordered the examination, the direction of the report drawn up in accordance with the established procedure within the time limit determined by the court decision, in the absence of a reasoned notification that it is impossible to timely perform the research for the reasons given above, to the head of the competent institution in whose staff the person is, Or directly to the most guilty person is fined. The amount of recovery is up to 5 thousand rubles.

Prohibitions

How to fix part 2 of Art. , эксперту не разрешается: 85 ГПК the Russian Federation , the expert is not authorized:

1. Carry out an independent collection of materials for the research.
2. Enter into personal interactions with the parties to the dispute, if this would call into question his lack of interest in the content of the decision.
3. Disclose information that has become known to him in the context of his professional activities, report the results of the examination to someone other than the authority that appointed it.

Special cases

The specialist and the institution performing the research can not refuse to conduct the research within the time limit determined by the court, because the party refuses to pay before the examination. In this case, the competent persons (institutions) should proceed as follows. They carry out the research, draw up a conclusion and a statement of compensation for the costs incurred. These documents are sent to the court with materials confirming the expenses. The authority that appointed the examination solves the issue of compensation for costs, taking into account the rules, Articles 98 and 96 of the Code.

Rights

Art. указывает, что эксперт в той степени, в какой это требуется для составления заключения, может: 85 p. 3 of the Code of Civil Procedure of the Russian Federation specifies that the expert, to the extent necessary for drawing up an opinion, may:

1. Get acquainted with the materials related to the subject of study.
2. Request the judicial authority for additional information for the study.
3. Ask questions to participants in the dispute, witnesses.
4. To send motions to involve other experts in the investigation.

Art. 85 ГПК the Russian Federation with comments

As the norm indicates, a specialist brought by the court to perform the examination, on the one hand, has the right to get acquainted with the materials of the dispute, ask for additional data, ask questions to witnesses and participants during the hearing, This is necessary to draw up an objective and reasonable conclusion. On the other hand, the expert has a number of obligations. He must take on the commission of the court, carry out the research, answer the questions properly, ensure the safety of the materials, come to the meeting on the agenda. It is worth mentioning that the previously valid Code did not set such strict regulations. In particular, the giving of an opinion was considered as an opportunity, and not an obligation of the expert. The former Code allowed the refusal to compile it without any additional explanation.

Art. обязывает эксперта направить мотивированное сообщение суду о причинах, по которым он не может дать заключение по исследованным материалам. 85 CCP RF obliges the expert to send a motivated message to the court about the reasons why he can not give an opinion on the materials examined.

Nuances of limitations

In connection with the fact that in a number of cases procedural duties are determined by direct prohibitions, in part two of Art. устанавливается, что специалист не может проявлять самостоятельность в сборе материалов, взаимодействовать с участниками спора, разглашать информацию, которая ему известна в рамках выполнения им своих профессиональных задач и сообщать о результатах исследования. 85 ГПК the Russian Federation it is established, that the expert can not show independence in gathering of materials, cooperate with participants of dispute, to disclose the information which to it is known in the course of performance of the professional problems and to inform on results of research. Such prescriptions are justified. The commission of any of the actions listed above may affect the comprehensiveness and objectivity of the study, as well as affect the interests of participants and other persons. The duties and rights of the expert in sectoral Federal Law No. 73 are most fully reflected. In the normative act it is additionally noted that the expert can not destroy, significantly change the characteristics of the objects of research without the consent of the body or subject that appointed the procedure. As for the disclosure of information, the law specifically emphasizes that among all the data a particular place is occupied by information capable of restricting the constitutional right of citizens, constituting a commercial, state and other protected secret.

Peculiarities of meeting deadlines

Particular attention is paid in the legislation of the duty of the expert to send an opinion within the period specified in the judicial decision on the designation of the study. The rule established by Art. , сопряжено с изменениями части первой 80 статьи Кодекса. 85 ГПК the Russian Federation , is interfaced to changes of a part of the first 80 clause of the Code. At present, the expert must carry out the investigation and send the conclusion taking into account the period specified by the court of general jurisdiction in the ruling. But a specialist or institution that conducts a study of the case materials may provide the court with a reasoned notification that it is impossible to conduct the procedure in a timely manner, because of the issues raised beyond the competence or in connection with the insufficiency / unsuitability of the facilities. If the deadlines specified in the resolution are not met, and if there is no notice, the person in charge is fined.

Specificity of cost recovery

Currently, the law requires the expert to carry out the research even if there is no preliminary payment by the parties. This rule eliminated existing problems in practice. Prior to amending the legislation, experts refused to carry out the research because the participants could not pay for it. As a result, production was suspended for a fairly long time, which, of course, is unacceptable for the normal administration of justice. Today, all costs incurred by the expert in carrying out the research in the absence of payment by the parties are subsequently compensated to him by the decision of the instance that appointed the procedure.