Article 35 of the Code of Civil Procedure of the Russian Federation. Rights and obligations of persons participating in the case

(official current edition, full text of Article 35 of the Code of Civil Procedure of the Russian Federation)

The concept of parties in civil proceedings, their rights and obligations

Parties to civil proceedings are persons participating in the case, the substantive dispute between whom is subject to consideration and resolution in court.

Article 34 of the Code of Civil Procedure of the Russian Federation classifies the parties as persons participating in the case, therefore, the characteristics of the parties include features characteristic of all persons participating in the case. To become parties to civil proceedings:

1. persons must be parties to the disputed substantive legal relationship. For this reason, their interests are opposed to each other;
2. one of the parties to the dispute must apply to the court to protect his rights;
3. the case for resolving a controversial legal relationship must be within the jurisdiction of the court;
4. persons must have legal capacity. Therefore, even a newborn may be a party to the proceedings (for example, in cases of collection of alimony for the maintenance of a minor child).

The parties participate in the process on their own behalf and in their own interests. A court decision is made regarding the parties, and legal costs are distributed between them.

The parties exist in litigation.

In litigation, the parties are called “plaintiff” and “defendant”. Regardless of the plurality of participants on the side of the plaintiff and (or) the defendant, only two named parties participate in the process.

A plaintiff is a person whose rights are allegedly violated or challenged by someone. The plaintiff is an active party, since it is he who turns to the court for protection (or certain entities turn to the court to protect the interests of the plaintiff).

At the same time, the plaintiff may be a person who does not independently turn to the court for protection, when other subjects of the process turn to the court for protection of his violated rights (for example, his legal representatives or the prosecutor, as well as state authorities, local governments, organizations or citizens participating in the process on the grounds specified in Article 46 of the Code of Civil Procedure of the Russian Federation). Regardless of who went to court to protect their interests, the plaintiff is the subject of the disputed material legal relationship. Thus, the plaintiff in the case of collecting alimony for the maintenance of a newborn child is a child, the mother acts as a legal representative, performing all procedural actions on behalf and in the interests of her child.

The defendant is a person involved by the court in a civil proceeding in connection with the plaintiff’s statement that his rights are being challenged or violated. The defendant is a passive party, since he is brought to court without his own initiative.

Until the end of the process, the plaintiff remains the plaintiff, and the defendant remains the defendant, even if it becomes clear that the rights of the defendant have actually been violated.

The parties to the proceedings have equal rights.

The rights of the parties are divided into general and special. All persons participating in the case have general rights, only the parties have special rights.

General rights are listed in Art. 35 of the Code of Civil Procedure of the Russian Federation: the right to get acquainted with the case materials, make extracts from them, make copies, file challenges, present evidence and participate in their study, ask questions to other persons participating in the case, witnesses, experts and specialists; file petitions, including requests for evidence; give explanations to the court orally and in writing; present your arguments on all issues arising during the trial, object to the requests and arguments of other persons participating in the case; appeal court decisions and use other procedural rights provided by the legislation on civil proceedings. The list is not exhaustive.

Special rights of the parties are provided for in Art. 39 Code of Civil Procedure of the Russian Federation. The plaintiff has the right to change the basis or subject of the claim, increase or decrease the amount of the claim, or abandon the claim. The defendant has the right to admit the claim. The parties can end the case with a settlement agreement.

Responsibilities depend on the position of the party in the proceeding (the defendant is the obligated party) and are divided into general (characteristic of all persons involved in the case) and special (applicable to the parties). General are the obligations to comply with the law when performing procedural actions, conscientious attitude to the rights granted, etc., special ones are the obligation to bear legal costs, present evidence in accordance with the distribution of the burden of proof, report a change in place of residence, etc.

If a party fails to fulfill its obligations, it may be held liable. For example, on the part of the party that has filed an unfounded claim or dispute against the claim in bad faith, or has systematically opposed the correct and timely consideration and resolution of the case, the court may seek compensation in favor of the other party for the actual loss of time (Article 99 of the Code of Civil Procedure of the Russian Federation).

Defendant's liability

The defendant is not criminally liable for misleading the court. Responsibility for this can be imputed to the defendant only under certain articles of the Code of Civil Procedure of the Russian Federation, the Civil Code (Civil Code) of the Russian Federation and the Arbitration Procedural Code (APC) of the Russian Federation.

Responsibilities

In accordance with the legislation of the Russian Federation, the defendant is obliged to:

1. write written objections to the claim,
2. while in a court session, participate in the process only with the permission of the judge (chairman of the court session),
3. maintain court discipline,
4. do not abuse rights,
5. comply with court requirements,
6. promote fair consideration of the case,
7. perform other duties prescribed by the court and law.

Civil procedural complicity and its types

Civil procedural participation is the simultaneous participation in civil proceedings of several persons on the side of the plaintiff and/or defendant. These persons are called co-plaintiffs (several persons on the plaintiff's side) and co-defendants (several persons on the defendant's side).

By virtue of Part 2 of Art. 40 of the Code of Civil Procedure of the Russian Federation, procedural complicity is allowed:

1. if 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.

The features of civil procedural participation are as follows:

1. accomplices are subjects of a controversial material and legal relationship;
2. the interests of the co-plaintiffs (or co-defendants) do not contradict each other, but are opposed to the interests of the opposite party;
3. there is one civil process in which the case is considered with the participation of co-plaintiffs and (or) co-defendants.

Civil procedural complicity may arise at the time of initiation of a civil case if several co-plaintiffs apply to the court or a claim is brought against several co-defendants. The emergence of complicity is possible at later stages:

• the court combines several claims pending in the proceedings of this court, in accordance with Art. 151 Code of Civil Procedure of the Russian Federation. Complicity arises after the determination;
• an accomplice may enter into the commenced civil proceedings. For a co-defendant to join the process, his consent is not required. If it is impossible to consider the case without the participation of the co-defendant (co-defendants), due to the nature of the controversial legal relationship, the court invites him (them) to participate in the case on its own initiative. After the involvement of a co-defendant (co-defendants), preparation and consideration of the case are carried out from the very beginning (Part 3 of Article 40 of the Code of Civil Procedure of the Russian Federation).

The co-plaintiff enters into the process of his own free will. This demonstrates the principle of dispositivity. If the court believes that the rights protected by the plaintiff belong to some other persons, then it informs potential plaintiffs of their right to appeal to the court.

Types of civil procedural complicity are distinguished depending on the compulsory nature of complicity, the legal status of the accomplices, etc. Depending on which side the accomplice is on, civil procedural complicity is divided: 1) into active (there are several accomplices on the plaintiff’s side); 2) passive (there are several accomplices on the defendant’s side); 3) mixed (there are several persons on both the plaintiff’s side and the defendant’s side).

Depending on the obligation to attract accomplices, civil procedural participation can be mandatory (necessary) and optional.

Mandatory (necessary) complicity is complicity that arises by virtue of the law, the nature of the disputed material legal relationship and does not depend on the discretion of the court or the persons involved in the case. Consideration of the case in the absence of at least one of the accomplices is impossible, as it can lead to the adoption of an unjust judicial act.

The meaning of the legislation implies the need to attract accomplices. For example, from Art. 69 of the Housing Code of the Russian Federation it follows that family members of the tenant of a residential premises under a social tenancy agreement have equal rights and obligations with the tenant. Consequently, in disputes about the division of housing, exchange of living quarters, etc. It is necessary to involve all adult family members of the employer living with him in the consideration of the case.

Mandatory participation arises in cases of common property, inheritance, claims for the exclusion of property from the inventory, for the protection of honor and dignity, for the right to use residential premises, etc.

The basis for compulsory complicity can be the nature of the object of the dispute: the consideration of a case on the right of ownership, the right of inheritance of one person depends on the establishment of the rights of other persons to the same object, which determines the presence of compulsory complicity in such cases.

Mandatory complicity concerns co-defendants, whom the court is obliged to involve in the consideration of the case. If complicity on the plaintiff’s side is necessary, the court does not have the right to forcibly involve co-plaintiffs in the process.

Optional complicity is complicity that arises at the discretion of the court. In this case, the cases of the accomplices can be heard separately, which will not affect the legality of the conclusion reached by the court.

The procedural basis for combining cases is the provision of Part 4 of Art. 151 of the Code of Civil Procedure of the Russian Federation, according to which the judge, having established that in the proceedings of this court there are several similar cases in which the same parties are involved, or several cases on claims of one plaintiff against different defendants or different plaintiffs against one defendant, taking into account the opinions of the parties has the right to combine these cases into one proceeding for joint consideration and resolution, if he recognizes that such a merger will contribute to the correct and timely consideration and resolution of the case.

Therefore, for the application of Art. 151 of the Code of Civil Procedure of the Russian Federation it is necessary to establish:

1) homogeneity of cases being processed by the court. Typically, the homogeneity of cases is determined by the similar subject of the claim (reinstatement at work, etc.), the basis of the claim (a single reason for the dismissal of several persons - staff reduction, etc.), which ultimately determines the range of circumstances that make up the subject of proof in the case. For example, the claim will not be homogeneous if one plaintiff asks to be reinstated due to illegal dismissal, and another asks to compensate for the damage caused to him by the same defendant. Here both the subject and the basis of the claim are different, hence the subject of proof will be different;

2) similarity of the subject composition: the same parties or there are several cases in court proceedings on claims of one plaintiff against different defendants or different plaintiffs against the same defendant;

3) the possibility of combining cases, which will contribute to a more correct and timely consideration and resolution of the case;

4) opinion of the parties.

The substantive and legal basis for the emergence of optional complicity exists in cases of joint infliction of harm. According to paragraph 1 of Art. 323 of the Civil Code of the Russian Federation, in the event of a joint obligation of debtors, the creditor has the right to demand performance both from all debtors jointly and from any of them separately. Thus, the creditor himself determines who to sue, so complicity may arise (sueing all debtors), or may not exist (sueing one of the debtors).

Accomplices enjoy the rights and bear the obligations of the parties to the proceeding. They are subject to general (Article 35 of the Code of Civil Procedure of the Russian Federation) and special (Article 39 of the Code of Civil Procedure of the Russian Federation) rights of the parties. At the same time, accomplices in civil proceedings have additional rights and bear additional responsibilities. Thus, additional rights include the following:

1) according to Part 3 of Art. 40 of the Code of Civil Procedure of the Russian Federation, accomplices may entrust the conduct of the case to one or more of the accomplices;

2) each accomplice acts in the process independently against the other party and is independent in his actions from the accomplices. For example, the plaintiff filed a claim to invalidate the apartment privatization agreement, according to which the defendant privatized the apartment without his consent (the plaintiff and defendant are spouses). The administration of the relevant city acted as a co-defendant in the case. During the hearing, the city administration admitted the claim, but the defendant did not admit the claim.

Preparation of procedural documents for defense in court

The examination of all written and material evidence takes place directly at the meeting. However, even before the case begins, you can send the following documents to the court:

• objections and responses to the claim - you need to indicate your arguments, links to evidence, and rules of law;
• counter-calculation of claims - submitted if you do not agree with the amount of the claim, penalties, compensation for moral damage, or other monetary claims;
• a petition to postpone the meeting - submitted if, for good reason, you cannot attend the meeting and ask to set another date;
• a petition to consider the case in your absence - submitted if you consider it inappropriate to appear at the hearing (for example, there is no point in attending the divorce court);
• a petition to summon witnesses to court, request documents - submitted if you cannot ensure the appearance of important eyewitnesses yourself, request the necessary documents from the defendant or third parties;
• an application to challenge a judge or other participants in the case is submitted if the judge has a personal interest in the dispute, or is related to the plaintiff.

Find out more How to quickly get a court order: step-by-step instructions

This is not a complete list of documents that you can send to the court in advance. You can present them directly during the process, but it is advisable to respect the court and inform it of important circumstances and facts. Please note that you are required to attach copies of documents that the defendant does not have. For example, when sending any payment document or a copy of the agreement, be sure to attach an additional copy for the second party. Otherwise, you will still be forced to do it at the meeting.

Can I prepare all the necessary documents myself? If time permits, you can study the codes and laws yourself and select judicial practice. All regulatory documents are publicly available on the Internet, so finding them is not difficult. As a lawyer, I advise you to involve professional specialists in drafting the document, even if you do not plan to use their services in court. Here are just a few good reasons for my argument:

• courts often have to read confusing and lengthy objections from defendants, which initially sets them up negatively for the conduct of the process;
• It is generally extremely difficult to make a correct counter-calculation, since you will have to take into account partial payments, count by individual periods or by statute of limitations (believe me, one of the most difficult counter-calculations will be in the simplest case of collecting a penalty for alimony);
• if you find the laws and codes yourself, then only a lawyer can correctly evaluate and reveal the content of complex terms;
• Judicial practice is very archaic and it is almost impossible to find the right solutions without a lawyer.

I do not encourage you to run to lawyers for any reason, I do not advertise or force services. Carefully consider the possible risks that self-protection entails. You can also get a free consultation from most lawyers to assess the prospects of your case. The help of a lawyer or advocate may even be useful in reducing the amount of penalties or obtaining payment in installments for execution.

When choosing a lawyer, you also need to think. I am sure that the vast majority of specialists are conscientious and will defend your interests to the fullest. There are exceptions to this practice, but these cases are becoming increasingly rare. If you have agreed with a lawyer on representation in court or on the preparation of a one-time document, it is advisable to conclude a contract (agreement). It allows you to immediately determine the scope of work and tariffs for services. I have already talked about how to properly declare a representative in court in a previous article.

Improper parties in civil proceedings. Replacing an inappropriate defendant

Those parties who are actually the subjects of the disputed legal relationship are called proper parties. The proper party is determined primarily on the basis of substantive law with the help of facts of active and passive legitimation. When going to court, the plaintiff must prove that he owns the disputed right (active legitimation) and that the defendant is the person who is responsible for the plaintiff’s violated right (passive legitimation).

When initiating a case in court, it is assumed that the parties are subjects of a controversial legal relationship. However, in the process of preparing and considering the case, it may be established that the claim was brought not by the person who owns the right of claim, and not by the person who should be liable for the claim. In this case, one of the parties (or both parties) is improper.

An improper party is a person who was originally supposed to be the subject of a disputed material legal relationship, but in reality is not such.

Legitimation can be used to determine the proper character of the parties in a particular case. For example, a mother filed a claim for alimony for the maintenance of two minor children against her husband, although the defendant is not the father of one of the children, which is confirmed by documents. Consequently, there are no family legal relations between this child and the defendant, and the defendant does not have the obligation to support this child.

The Civil Procedure Code of the Russian Federation does not provide for the possibility of replacing an improper plaintiff, which is fully consistent with the principle of discretion. If it is determined that the plaintiff is inappropriate, the court refuses to satisfy his claims. In turn, the proper plaintiff has the right to file a claim in court.

The procedure for replacing an improper defendant is provided for in Art. 41 Code of Civil Procedure of the Russian Federation.

Replacing an improper defendant with a proper one means that the first is released from participation in the process, and the second is brought to participate in the case.

There is only one condition for replacing an improper defendant—the plaintiff’s consent to replace the improper defendant. When preparing a case or during its trial in a court of first instance, the court may, at the request or with the consent of the plaintiff, allow the replacement of an inappropriate defendant with an appropriate one. After replacing an improper defendant with a proper one, preparation and consideration of the case are carried out from the very beginning (Part 1 of Article 41 of the Code of Civil Procedure of the Russian Federation), i.e., all actions performed before this have no legal significance for the proper party.

If the plaintiff does not agree to replace the improper defendant, the court considers the case based on the claim (Part 2 of Article 41 of the Code of Civil Procedure of the Russian Federation).

The replacement of an improper defendant is formalized by a ruling.

The replacement of an improper defendant may take place during the preparation of the case and during its consideration in the court of first instance.

General information

Justice in civil cases is carried out by magistrates and courts of general jurisdiction, which initiate such cases on the basis of applications received from interested parties. Not only the person whose rights need to be defended, but also other individuals and legal entities have the right to go to court.

First of all, it should be noted that procedural legal relations in the field of civil rights are regulated by the Civil Procedure Code of the Russian Federation (hereinafter also referred to as the Code of Civil Procedure of the Russian Federation). Some narrower issues are regulated by other legal acts, for example, the laws of the Russian Federation on courts of various categories and on the judicial system, on the prosecutor's office, on forensic activities and many others.