To reach the Sovereign court
This business which was conducted the lawyer by Darya Morozova, lasted the whole four years and has ended in the Sovereign court with victory of citizens over Committee of municipal habitation of the government of Moscow. And all has begun in 1994 when spouses Sergeeva and Ivanov two rooms in three-room apartment privatised, and after two months have bought from Department of municipal habitation of the government of Moscow the released third room in the same apartment. Privatisation of the two rooms was urged - differently the Department of municipal habitation refused to sell it the released third room. The matter is that to attach free of charge this room of the spouse not could - had no right. She could be bought only.
After Ivanov`s death his daughter began to apply for apartment from first marriage. While the father was live, the daughter was not interested in it, and after death of the father has become interested in remained property. For this reason the widow has gone to district court with the claim to Committee of municipal habitation and the respondent - daughters of the died husband. The widow asked to recognise as void privatisation of two rooms therefore as this privatisation was urged - without it did not sell a room in the former communal flat. And still the widow wrote that privatisation has been made “ under the influence of the error having essential value for claimants “.
the District court has refused to the widow. Has not changed the decision and Judicial board on civil cases of Presidium of the Moscow city court. Then Sergeevoj was necessary to be converted with the statement as supervision to the vice-president of the Sovereign court of the Russian Federation. The vice-president has written the protest in which has raised the question about cancellation of the previous judgements. The judicial board on civil cases of the Sovereign court has cancelled the previous judgements from - for “ essential infringement of norms of a procedural right “.
the Previous courts, refusing to the widow, considered that istitsa, signing the contract of privatisation of two rooms, was mistaken concerning motives of the transaction, but it doesn`t matter to recognise the transaction void. Sergeeva said what to privatise rooms them have forced. Confirming to the words the widow has referred to the document obliging citizens to privatise occupied rooms if they want to buy the released room. The document is called Position about an order and terms of sale of the released rooms to tenants of communal flats. But the rule provided by this Position on which sale of the released rooms is possible only after privatisation of in what live, contradicts the Law “ About available housing privatisation in the Russian Federation “.
Under this law privatisation is a free transfer to the property of citizens on a voluntary basis of premises occupied with them in the state available housing. That is the statement for transfer of habitation in the property should be voluntary, instead of urged, under the administration offer.
this position and more Contradicts one Law - “ About bases of a federal housing policy “. Here it is said that there is a right to get the released habitation in apartment under the purchase and sale contract. And this right does not make a reservation any conditions.
it was therein found out: that circumstance that privatisation for Sergeevoj was urged, did not investigate any court. And it was one of the bases of its claim and it should be investigated completely in court.
We go to the very top
the Way to the Sovereign court long. At once to be converted into the main court it will not turn out. The sovereign court is top of a long ladder of appeals, cassations, obzhalovany. And at first it is necessary to tell all procedure.
the Order of civil legal proceedings is certain by the Constitution and two laws - “ About judicial system of the Russian Federation “ and “ About world judges in the Russian Federation “ and the Civil remedial code.
Now the institute of world judges is entered into civil legal proceedings. They consider civil cases as court of the first instance. But world judges resolve not all civil cases, but only what are attributed by it 23 - j article GPK. And civil cases which are solved by district court, are registered in article 24 - j GPK.
the order of that appeal appeal that the world judge has solved, has been entered for the first time in 2000. Appeal manufacture is one of ways of elimination of lacks of other judicial decisions. In appeal manufacture decisions and definitions of world judges are considered only. Decisions of world judges are not subject to the appeal in a cassation order. Such decisions will be appealed against in district court of that area where the world judge works.
Than the appeal differs from the cassation? There are some criteria:
1. A different order of consideration. The appeal is considered by the regional judge individually. Cassations - it is is college - three professional judges.
2. Different powers of courts at cassation and appeal instance. The judge of appeal instance cannot cancel the decision of the world judge and send business on new consideration. Judges of district courts, rectifying errors world, should make corrections to the passed decision. The appeal decision replaces with itself in full or in part the decision of the world judge.
3. The court of appeal instance considers case again, with a call of those who participated in business. In cassation instance if one of the parties has not come it does not prevent to consider case.
4. The court of appeal instance has the right to establish the new facts and to check new proofs.
what terms we will keep within?
By the general rules, term of giving of appeal and cassation complaints makes 10 days, considering from the date of decision-making by the judge. It in the theory. But in life it turns out so that in day when the judge passes the decision, it is disclosed only rezoljutivnaja a part, that is court conclusions. And in the final shape the decision can be made out about one month. In that case I advise, if the judgement of the first instance of the person does not arrange, to write the short cassation or appeal complaint, where to notice that same, but you will write the developed complaint after acquaintance to the definitive form of the decision.
Manufacture in court of supervising instance means the right to the appeal of the judicial decisions which have entered validity. Decisions of Presidium of the Sovereign court will be an exception only.
Now in grazhdansko - the remedial legislation there are changes. They concern an order of the appeal of judicial decisions in a supervising order. In them the target date when revision of the come into force judgements - is possible year from the moment of the introduction into validity of a judgement is more exact. During this period one of the parties can appeal against against the decision in a supervising order.
There is a difference as giving of the supervising complaint. Cassation and appeal complaints are brought an action, which has passed the decision, and the supervising complaint - at once in supervising court.
About what not to forget to write
In new GPK it is written down that should contain in the complaint: The court name where there is a complaint, a name of the person which makes the complaint, its residence and position in business, names of other participants of process both their position and addresses, instructions on courts which considered cases on the first, cassation and appeal instance, the decisions made by them, the instructions, what decision will be appealed against, in what an error and the request what exactly should be changed.
How long wait
In supervising instance your supervising complaint can not to consider and return, if all conditions of giving of the complaint are not met, and they are registered in 378 and 380 articles GPK. The complaint in supervising instance is considered in time, it is no more month, in the Sovereign court it is no more than two months.
If by results of consideration of the complaint the judge decides to request business then the supervising instance will work no more than two months, and the judge of the Sovereign court of no more than four months.
What to wait?
the Supervising instance has the right: to leave the judgement of the first, second, supervising instance without change. Can cancel the judgement in full or in part and send business on new consideration. Can uphold one of the accepted decisions. Can cancel or change the previous judgements and accept the new judicial decision, without sending business for revision, if an introduced error in application or expounding of norms of the substantive law. Can stop manufacture on business.