Special production. CCP RF, art. 262: "Cases to be considered by the court in special proceedings"

Special production in the CCP is a kind of civil proceedings, along with the action and order. It is designed to solve a list of specific tasks related to the protection of the rights and interests of citizens and organizations.

Form of legal proceedings

Art. 262 of the Code of Civil Procedure of the Russian Federation does not include the notion of special production, only its purpose is to reveal facts or circumstances that affect the appearance, change or termination of civil rights and obligations of citizens and organizations.

Another goal is to establish the legal status of a person or property.

In particular, cases of special proceedings include cases on the limitation of legal capacity or the recognition of a person incompetent. Cancellation of decisions on cases of special proceedings is considered on the basis of filing a new application, where it is provided. In other cases, the rules for resuming cases on newly discovered circumstances are applied.

Art. 262 of the Code of Civil Procedure of the Russian Federation contains a list of cases attributable to special production by law. It can be supplemented by other federal laws.

General features of cases of special production

Participants of the process are represented by two parties:

• The applicant;
• interested party.

The applicant is an analogue of the plaintiff, a person who needs recognition of a particular fact.

The interested person is an organization, body or notary who does not have reliable evidence of a legal fact.

Attraction of the court to the resolution of complexities arises for two reasons:

• Direct indication of the law;
• The impossibility of confirming or refuting the facts of interest to the applicant and other persons in any other way.

The special production in the CCP is simultaneously characterized by strict regulation (adoption and adoption cases), and the provision of broad freedom (for example, the establishment of the fact of residence in the Crimea at the time of March 18, 2014), depending on which case is being discussed.

The application is sent to the court at the place of residence of the person or the location of the organization. In cases of establishing the fact of owning a property, an application is filed at the location of the facility.

A state fee of 300 rubles is paid. Cases are considered by district courts, world judges do not deal with this category.

Establishment of fact

Art. 264 CCP contains a list of cases in which the establishment of fact is being considered. The procedure extends to an unlimited number of cases.

For example, it is not uncommon to ask for a relationship. The need arises from the destruction of documents at a time when, for example, they are asked to establish a kinship with a deceased person in order to accept an inheritance after him. The documents confirming their relationship have not been preserved in the registrar's offices or in other organizations.

The peculiarity of the court's activity is that, unlike other public authorities or a notary, it is not obliged to act solely on the basis of indisputable evidence. He has the right to fill a gap in the evidence chain with testimony, information that has an indirect bearing on the case.

The receipt of a document is provided by filing an application and a specific set of papers. If they can not be collected, then it remains to apply to the court.

Special production in the CCP provides for the obligation to prove attempts to gather information before going to court. These are the answers from the archives, authorities confirming that they can not help. Without a proof of a preliminary appeal to the competent authorities, the application shall not be accepted by the court.

The applicant must explain the reasons for applying to the court, for which he needs a court decision.

The role of the court is to link the available facts so that the applicants can exercise their rights. However, the court does not replace the competent authorities.

Adoption procedure

Adoption or adoption is carried out exclusively in the judicial system, the guardianship authorities here are one of the parties to the process, taking an active position.

If the application is filed by foreigners or citizens living abroad, the case is considered by a regional or republican court, cities of federal significance.

The statement states:

• The name of the potential parent or parents;
• Name of the child;
• The circumstances of his adoption;
• The request to change the name of the child, the date of his birth, if the child is younger than 12 months;
• A request for the registration of the adopter or adoptive parents as a parent or parents on the birth certificate.

Adoption or adoption requires confirmation of a number of circumstances:

• health status;
• Consent of the second spouse or proof of separation for at least 12 months;
• Availability of official income;
• Availability of housing on the right of ownership or use (lease, the right of a member of the owner's family, etc.);
• Documents confirming the passage of training as a potential adopter;
• The conclusion of the guardianship authorities on the adoption of the child by the applicants.

Relatives, stepfather or stepmother, should not be preliminarily trained and registered as a candidate.

The cases of special production of this category are considered carefully enough, and before they enter the court, serious preparation is carried out.

Adoption because of neglect of parental debt is canceled in the court order.

Announcement dead or missing

The application for the recognition of a citizen as missing is filed with the aim of obtaining the termination of marriage or the receipt of a survivor's pension. The minimum waiting period is 1 year.

If the court recognizes the fact of death, then the inheritance is opened, and the transfer of rights to property is ensured. Also, marriage is terminated and the right to a pension arises. In the process, the prosecutor participates in order to give an opinion to the court.

An unknown absence is confirmed by certificates from the Internal Affairs Directorate about the futility of searching for the missing person, testimony of witnesses.

Recognition of the dead is allowed in the absence of a period of at least 5 years. If there was a threat to life, then - 6 months. Disappearance during military operations gives the right to recognize the dead no earlier than 2 years after the end of hostilities.

The cases of special proceedings for the recognition of the dead are considered by the courts reluctantly, it is much easier to obtain recognition as missing. If a person is declared, then the decision is canceled.

Applications for restriction or deprivation of legal capacity

The attainment of the 14-year-old age gives the child a certain freedom in committing transactions, obtaining income and dispose of them, and the responsibility for causing property damage is expanding.

In our time, among children, unfortunately, there is an abuse of alcohol and drugs. Such circumstances entitle the parents or guardian to apply to the court to limit the independent expenditure of funds.

The application for limiting the capacity of a citizen may be filed on the basis of establishing the fact of dependence on drugs or alcohol, which leads to a distressed family. A person has the right to make small purchases, but incomes are controlled by a guardian, in particular a wife or parents or other persons.

If a person is mentally ill to such an extent that he can not control his actions and realize his actions because of his state, it is allowed to ask the court to deprive a person of legal capacity.

Part of the application review process is the conduct of a psychiatric examination. Its results determine the court's decision, if it does not come out to challenge it, which is extremely difficult. Courts seldom, given the apparent inconsistency of the findings of the examination of the case materials and with its internal contradiction, agree to a new examination.

The application in all these cases is submitted either by the guardianship authorities, or by relatives, or by a psychiatric hospital, if the citizen is in a psychiatric hospital.

Special proceedings in the civil process give the right to a person deprived or restricted in legal capacity to submit to the court an application for the cancellation of the previous decision. Appropriate grounds: lifestyle changes and recovery.

Obligatory participants are the prosecutor and guardianship authorities. The decision of the court is sent to the guardianship authorities, which are appointed by the guardian. Cancellation of the decision leads automatically to the cancellation of guardianship.

In cases on the issue of legal capacity, it is especially evident how the rules of the CCP on special production are closely intertwined with the provisions of other laws.

Emancipation Statements

A child who has reached the age of 16 has the right to ask the court to emancipate him, that is, to declare himself fully legally competent. What is the reason for this? Admission to work, the desire to start one's own business.

In addition to additional freedom, the applicant also receives responsibility for all of his civil obligations (committing transactions, causing harm). In the consent of the guardians or parents, he no longer needs. All property responsibility falls completely on him.

The judge's refusal to emancipate can appeal or eliminate the reasons for refusal, which the judge referred to, and then again apply to the court.

The submission of the opinion by the guardianship authorities and the prosecutor's office is mandatory.

Statement on the recognition of a thing as an orphan

The application is submitted by the municipal administration, which revealed the property, the ownership right, which was not registered for anyone, or the owner refused it.

The law requires 12 months before the application is sent to the court to put the object on record as an ownerless property.

The impossibility to reveal the owner is proved: answers from the archives, the owner's statement about the refusal of the property. An extract from Rosreestr is provided on the absence of registered ownership.

The application for the recognition of a movable property without owner shall be submitted according to the same scheme as the application for an immovable property.

The judge is obliged to find out who can be related to the property (potential heirs, owners, etc.).

It is forbidden to recognize the ownerless property of persons missing or deemed dead.

Restoration of rights to securities

Special production in the civil process entitles you to request the restoration of rights to registered or order securities. Special production in the civil process extends to papers that can not be used because of their damage or destruction.

Requesting them from a third party, which they possessed, is provided by filing a lawsuit.

The applicant must prove that the credit organization refuses to carry out transactions on these securities. The refusal should be the reference to the violation of the form of the security, and not to the lack of the applicant's right in general.

On the basis of the decision, the old document is canceled and a new one is issued.

The applicant must publish information about the process, data on the security in the media.

Within 2 months of a credit institution, operations on the declared security are prohibited.

The appearance of the owner, who claimed his rights, obliges the court to stop special production.

Illegal possession is disputed already in the lawsuit.

Compulsory hospitalization

The law "On Psychiatric Care" gives the right to put a person in a hospital without his consent. Causes are a mental state in which it poses a danger to itself and to others.

At the heart of the statement of the medical organization is the commission of the doctors of the hospital and extracts from the medical card and other materials confirming the claimed facts.

The application is submitted no later than 48 hours after the dispatch to the hospital. If it was not filed, the person must be released.

When applying, the judge extends the stay in the hospital until the end of the case, which can not last more than 5 days.

An application for prolongation of the term of stay in the hospital and examination of the citizen is envisaged.

The judge has the right to resolve the case, being in his office or visiting the hospital, to assess not only the paper, but the patient himself, if it is impossible to bring it to court. The prosecutor's opinion is necessarily given in the case.

Incorrect civil status records

The acts of civil status provide for the elimination of administrative errors.

Preliminary application is submitted to the registry office with the aim of correcting the error or making a change in the record.

Having been refused, the applicant has the right to apply to the court. The validity of the statement, actions of officials is checked. A judge may deny the application for two reasons:

• There are no grounds;
• Between the applicant and the authority there is a dispute about the law.

If the court takes the side of the applicant, the decision is executed by making entries in the assembly books and issuing new certificates.

Appeal of notarial acts

Applicants are persons whose interests have been affected by a notarial act. In the protection of other people's interests, the prosecutor also has the right to apply if the person can not defend his rights for valid reasons.

A mandatory condition for consideration is the absence of a dispute about the law (for example, on inheritance, the right to real estate).

The term of the complaint is limited to 10 days since the day it became known about the violation. As a rule, this is the day of receipt of the relevant document.

In addition to notarial documents, papers are provided that confirm, in the applicant's opinion, his rightness.

Without the restoration of the missed deadline, a complaint against a notary is not accepted. This is the only exception, since the cases considered by the court in the order of special proceedings are not tied to time limits.

Restoration of materials of judicial proceedings

Loss of documents in state bodies is not uncommon, and the court is no exception in this area.

If there is a need to obtain documents from the court case, it is not just a decision, it is a statement about the restoration of production. It does not matter whether the final decision was made in the case or it was terminated.

The application shall specify:

• case number;
• Parties;
• The circumstances of the case;
• Other information.

Enclosed are the surviving documents, copies of procedural documents.

The applicant must inform the reason for the restoration of the materials of production.

The refusal of the court to restore production opens the way to a new suit of the same plaintiff, besides the defendant on the same grounds and occasion. With an existing court decision, this is prohibited.

Art. 262 CCP RF with the comments, unfortunately, does not contain all the possible options and nuances of cases of special production. Therefore, it is desirable to consult a specialist with practical experience in the category of cases of interest.