Preparation of civil cases for trial

When preparing a case for trial, the provisions of Chapter 16 of the CPC and the regulatory Decree of the Supreme Court of December 13, 2001 No. 21 "On the preparation of civil cases for trial" should be followed.

From the date of acceptance of the statement of claim and initiation of the civil case, the judge prepares the case for trial, which is determined (Article 165 of the CPC) with an indication of a specific list of actions to be performed, including to eliminate the shortcomings of the statement of claim (if any). The transfer of the provisions of Articles 163 and 165 of the CPC to the definition of preparing a case for trial loads its content, and may indicate the formalization of this stage of the process.

The deadline for preparing the case for trial is set at 15 working days, during which the parties submit evidence to the court and disclose it (Article 73 of the CPC). In cases of special complexity, except in cases of recovery of alimony, compensation for damage caused by injury to health, as well as in cases of loss of a breadwinner and claims arising from an employment relationship, after the expiration of the established 15 working days, this period may be extended for another month by reasoned determination of the judge (Article 164 of the CPC). The CPC has established other deadlines for preparing the case for trial. For example, in cases considered in special proceedings, the preparation period is set at 10 working days and cannot be extended.

The calculation of the time limit for the preparation of a case should begin on the day following the day of the ruling on the initiation of a civil case. At the same time, the end of the training period does not necessarily have to fall on the fifteenth working day, since the law limits only the maximum length of time – no later than fifteen working days, and setting the training period within this size is within the competence of a judge. The judge may set a training period of less than fifteen working days. This position is most acceptable in order to exclude violations of deadlines due to the need to postpone a preliminary court hearing or to declare a break due to unforeseen circumstances (non-appearance of the parties, etc.).

In order to prepare the case for trial, the judge performs the actions set out in Article 165 of the CPC (sub-paragraphs 1) - 16)). This list is approximate.

In accordance with subparagraph 1)[1] of Article 165 of the CPC, the judge imposes the obligation on the defendant to submit, within the prescribed period, a written response to the claims made by the plaintiff, accompanied by evidence substantiating the arguments.

In order to ensure the exchange of written documents between the parties, it is necessary that the established time limit allows the parties to carry out such actions repeatedly: to the statement of claim - a response; to the response - objections (explanations) of the plaintiff; to the objections (explanations) of the plaintiff – objections (explanations) of the defendant. This conclusion is consistent with the provisions of subparagraph 16) of Article 165 of the CPC. For example, after receiving a response from the defendant to the statement of claim within the prescribed five-day period, the judge may demand from the plaintiff his objections (explanations) in the next 3-5 days. It is also possible for the court to receive a written response from the plaintiff to the defendant's response, accepting his arguments or refuting them, which the judge may also send to the defendant if the plaintiff has not sent them to him. After receiving the objection documents, invite the respondent to express his position.

The preliminary exchange of written documents allows the judge to accurately determine the disputed and indisputable facts of the case and focus further on the study of disputed facts (circumstances) relevant to the proper resolution of the case, to establish the presence or absence of a counterclaim by the defendant, which is possible subject to the requirements of Article 153 of the CPC. Otherwise, such a claim may be filed independently (see the commentary to Article 153 of the CPC).

If a counterclaim is filed at the stage of preparation of the case or already preliminary consideration of the case, then the time limit for the counterclaim is not extended separately if the time limit for preparing the case for trial on the main claim has expired. Such provisions are aimed at speeding up the process of restoring violated rights, taking into account the content of the counterclaim directly related to the main claim, for which the case has been prepared for trial, the counterclaim can only be sent to offset the claims, etc.  

2) If the defendant or other persons participating in the case declare that the documents attached to the statement of claim have not been received, they shall be made available to the court. When these persons apply for the service of documents, the plaintiff is required to provide copies of these documents.

3), 4), 5) Considering that the period of preparatory actions is limited to 15 working days, taking into account the time required for their implementation, the judge may simultaneously set the date of the preliminary court session in the ruling on the preparation of the case for trial, which is notified to the parties in accordance with the requirements of Article 127 of the CPC. In accordance with the requirements of subparagraph 7) of the first part of Article 128 of the CPC, their procedural rights and obligations provided for in Article 46 of the CPC are indicated in the court summons, or other notification, summons.

Since the judge obliges the defendant to submit a written review, provides the parties with the opportunity to exchange documents again, in the ruling on the preparation of the case for trial or in a court summons or other notice, the parties may be explained: the duty of proof and the legal consequences of failure to provide evidence (Articles 72, 73, 109 of the CPC).

By virtue of the first part of Article 72 of the CPC, each party must prove the circumstances to which it refers as the grounds for its claims and objections, use remedies, assert, challenge facts, provide evidence and objections to evidence within the time limits set by the judge, which correspond to the fair conduct of the process and are aimed at facilitating the proceedings.

The procedure for presenting evidence and the legal consequences of late presentation or non-presentation of evidence are set out in Article 73 of the CPC. In particular, it is established that if a party retains the evidence demanded by the court and does not submit it at the request of the court within the time limit set by the court, it is assumed that the information contained therein is directed against the interests of this party and is considered recognized by it. Evidence should be presented and disclosed at the stage of preparing cases for trial.

The second part of Article 109 of the CPC is aimed at suppressing abuse of the right by persons participating in the case. It provides for the right of the court to attribute all court costs in the case to a person who abuses procedural rights or fails to fulfill procedural duties. Such cases may also include the presentation of evidence in violation of the time limit set by the court and the procedure for presenting evidence provided for by the CPC without valid reasons, if this led to a delay in the trial, obstruction of the consideration of the case, and in the absence of a statement (petition) from a party exercising its rights in good faith. When requesting evidence, the court may explain, at the stage of preparing the case for trial, the legal consequences of their failure to submit or abuse of the right.

The judge takes measures to reconcile the parties and assist them in resolving the dispute at all stages of the process, therefore, the notice can clarify the parties' rights to reconciliation, entailing the termination of the proceedings (subparagraphs 5), 6) of Article 277 of the CPC), on the legal consequences of termination of the proceedings – the impossibility of a second appeal to the court on the dispute between by the same parties on the same subject and on the same grounds (part two of Article 278 of the CPC).

The attractiveness of the institution of conciliation procedures lies in maintaining relations between the parties and refunding the state fee in case of reconciliation in the early stages of the process in full. However, not every agreement may entail a refund of court costs, which, by virtue of Article 102 of the CPC, consist of state fees and costs.

According to subparagraphs 3), 4) of the fifth part of Article 177 of the CPC, the ruling on the approval of the settlement agreement indicates the distribution of court costs in accordance with the fourth part of Article 176 of the CPC and the return to the plaintiff from the budget of the state fee paid by him. By virtue of part four of Article 176 of the CPC, if there is no provision in the settlement agreement on the distribution of court costs, they are considered mutually repaid, which is consistent with the principle of dispositivity, by virtue of which the parties themselves determine the methods of protection.

If the distribution of court costs is not provided for by the terms of the settlement agreement, the court, in accordance with the requirements of subparagraph 3) of part five of Article 177 of the CPC, does not consider this issue when approving the settlement agreement, since they are considered mutually settled.

Considering that the settlement agreement may set out different conditions for dispute settlement, full or partial debt forgiveness, etc., the amount of the state fee must be refunded to the plaintiff from the budget within the limits of the requirements settled by the settlement agreement. If the court continues to consider the merits of the case regarding the claims, the issue of redistributing court costs in this part is subject to resolution in accordance with the requirements of the CPC on adjudication and distribution of court costs.

By virtue of the second part of Article 115 of the CPC, if the filing of a claim is not caused by the defendant's guilty behavior, then the court costs are borne by the plaintiff if the claim is recognized by the defendant in court. An agreement may be concluded in court between the parties on the settlement of the dispute, according to which the defendant may recognize the claim and agree on an installment plan for the fulfillment of the obligation with the plaintiff.

The issues of the refund of the state fee in connection with the reconciliation are resolved by the courts on the basis of the statements of the parties on the approval of the settlement agreement and on the refund of the state fee from the budget in connection with the reconciliation.

6) The question of the jurisdiction and jurisdiction of the dispute is decided by the judge at the stage of acceptance of the statement of claim. At the stage of preparation, the accuracy of information about the defendant's place of residence or location may still be verified by the court if the documents sent to the specified addressee are returned.

Jurisdiction may be changed at the request of the legal representatives of a minor (part three of Article 27 of the CPC). This issue should be discussed by the court at the stage of preparing the case for trial at a preliminary court hearing, so as not to create obstacles to the consideration of the case in court. As a rule, in support of the petition, the party indicates that the child is in the jurisdiction of a non-specialized court. If a petition is filed during the consideration of the case on the merits, the court finds out the reason for not filing it during the preparation of the case for trial. In the absence of valid reasons, the request for referral of the case to the jurisdiction may be rejected, taking into account all the circumstances of the case, including: procedural economy and lack of data preventing the case from being considered in court proceedings in this court.

On the issue of transferring the case to another court, a ruling is issued that can be appealed or appealed to the court of appeal in accordance with the requirements of part three of Article 34 of the CPC, the decision of which is final and cannot be appealed or challenged. Since the norm provides for "on the issue of transfer of the case," the ruling on the refusal to transfer the case to another court is also subject to appeal in a similar manner.

7) The issue of the composition of the persons participating in the case, including the entry of third parties into the case, is resolved. The issues of participation of third parties in the case are resolved in accordance with the requirements of Articles 51, 52 of the CPC by notifying them of the acceptance of such a statement. At the same stage, the issue of replacing an improper defendant is resolved in accordance with the rules established by Article 50 of the CPC.

8) Interested persons are notified, the issue of whose legal status is resolved after clarifying the subject of their interest in the outcome of the trial in the case.

9) An expert examination may be appointed (Article 82 of the CPC), interpreters may be involved in the case, and the language of the proceedings may be changed (Article 14 of the CPC).

10) The issue of summoning witnesses to the court session is resolved if a motion has been filed to that effect. The content of the petition must comply with the second part of Article 80 of the CPC, which establishes the need to provide information about the witness and substantiate the need for interrogation.

11) If there are petitions, assistance is provided to the parties in requesting evidence from citizens and legal entities, explaining to the citizens and legal entities to whom the court's request is addressed the legal consequences of its non-fulfillment (parts seven, eight of Article 73 of the CPC).

12) In urgent cases, an on-site inspection of written and physical evidence is carried out with the notification of the persons participating in the case. Such actions are carried out by the court in order to ensure the consolidation of evidence if the possibility of examining evidence is lost by the time of the trial. The court records the procedural actions for further examination of the evidence provided by the parties at the court session.

13) Court orders are sent to other courts in accordance with the requirements of Article 74 of the CPC.

14) If an application is filed for the return of a statement of claim after the initiation of a civil case, it is satisfied with the issuance of a ruling on leaving the statement of claim without consideration and returning it on the grounds of subparagraph 8) of Article 279 of the CPC. The plaintiff's legal expenses are not reimbursed. If the defendant files a motion for reimbursement of court costs, they are imposed on the plaintiff in accordance with part three of Article 115 of the CPC. The provisions are relevant in order to prevent the filing of claims without the defendant's guilty behavior, abuse of the rights of persons involved in the case (parts one and three of Article 115 of the CPC).

15) Before applying to the court, the parties have the right to take measures to resolve the dispute through a participatory procedure by contacting lawyers. In case of non-settlement of the dispute, the parties submit to the court the documents and evidence obtained during the participatory procedure.

When submitting documents attached to the statement of claim, the judge may question the plaintiff on the merits of the claims, find out from him the disputed facts, possible objections from the defendant, and suggest, if necessary, to provide additional evidence. To ensure the expeditious preparation of the case for trial, the judge may conduct a survey by sending a request to the plaintiff, with a proposal to supplement the statement of claim with such information, if the statement of claim does not detail these issues. The judge may also clarify these issues with the plaintiff at a preliminary hearing if the defendant did not appear. If both sides turn out, the disputed facts will be clarified by both sides.  

The court may also perform other actions aimed at establishing circumstances relevant to the proper resolution of the case (subparagraph 16) of Article 165 of the CPC). For example, to separate one or more of the claims joined by the plaintiff into a separate proceeding. Combining several claims into one proceeding is possible only in cases where, by the nature of the claims in their interrelation and by the availability of common evidence, it is possible for a faster and more correct resolution of all the claimed claims in one proceeding.

The term of consideration of the case after the allocation of one claim from another is calculated from the date of completion of the preparation of the case for trial on the allocated claim. The time limit for consideration of a case from which another claim is singled out is calculated according to the general rules from the moment the statement of claim is received by the court on this claim.

The term of consideration of the case after the cases are combined into one proceeding is calculated from the date of completion of the preparation of the case for trial at the request stated earlier (Article 167 of the CPC). The conclusions are based on the fact that a judge, when preparing a case for trial, must resolve petitions in a timely manner in order to prevent unjustified delays. Such deadlines correspond to the purpose of combining cases – the possibility of a faster and more correct resolution of all claims in one proceeding, based on the common interests of the procedural accomplices on one side and the availability of common evidence.

The plaintiff has the right to change the basis or subject of the claim, increase or decrease the amount of the claims by submitting a written statement before the end of the preparation of the case for trial, so that the other party can also prepare for the process and so that there are no grounds for postponing the proceedings in the case.

In such cases, the preparation of the case for trial should be carried out taking into account the changed requirements. In the descriptive part of the decision, it is necessary to indicate the originally stated requirement and its modification. There is no need to issue a separate ruling on the acceptance of the amended requirements.

If a pre-trial dispute settlement procedure is established by law or provided for by a contract for claims that are being amended, then the amended claims may be submitted after compliance with this procedure. For example, the bank filed a lawsuit with the court for early recovery of the entire amount owed on the loan due to the defendant's violation of the terms and maturity dates. At a court hearing, the bank may change the subject of the claim for termination of the contract on the same grounds. In this case, consideration of claims for termination of the contract is possible after a preliminary settlement of the dispute in accordance with paragraph 2 of Article 402 of the Civil Code.

Simultaneous or in any sequence, a change in the subject and the basis of the claim means that the plaintiff submits a new claim and the plaintiff rejects the previously filed claim, which entails the termination of proceedings on the previously filed statement of claim (part two of Article 169 of the CPC). The judge explains the legal consequences of simultaneously changing the subject matter and the grounds of the claim provided for in the commented norm, and clarifies the position on the claim. In pursuance of this rule, the judge selects from the plaintiff an application for termination of the proceedings in connection with the rejection of the claim and explains its legal consequences provided for in the second part of Article 278 of the CPC.

Simultaneous or in any sequence, a change in the subject and the basis of the claim is allowed only in the case of an agreement on the settlement of a dispute (conflict) in mediation, which allows the parties to overcome the conflict and go beyond the subject and the basis of the claim, which is consistent with the objectives of mediation. In this case, the proceedings are terminated in connection with the approval of the agreement on the settlement of the dispute (conflict) by mediation.

The court may not, on its own initiative, change the subject matter or the basis of the claim. The parties themselves choose the right to choose the method of protection. The court's interference in the content of the submitted claims is illegal.

The plaintiff has the right to withdraw the claim when preparing the case for trial or before the court is removed to the conference room by submitting a written application to the courts of first and appellate instances. The court does not accept a waiver of a claim if these actions are contrary to the law or violate someone's rights, freedoms and legitimate interests. The provisions of the CPC make it possible to cancel a court decision with the termination of proceedings in the case of the plaintiff's refusal of the claim and in the appellate instance at the stage of preparing the case or before the court is removed to the conference room. The validity of this position of the CPC is confirmed by the fact that, in accordance with the principle of dispositivity, the parties themselves choose ways to protect their violated rights and legally protected interests. The court of appeal is considering an appeal against a court decision that has not entered into force, therefore, the court of appeal has been granted the right to consider the plaintiff's waiver of the claim in order to ensure timely restoration of the violated rights of the defendant, who, possibly in connection with the plaintiff's claims, would have to prepare for the process in the court of cassation..

By rejecting the claim, procedural savings are achieved, and the time for restoring violated rights is shortened. The waiver of a claim may also be justified by concluding agreements in the order of conciliation procedures. A waiver of a claim may also be accepted if, after the cancellation of a court decision, the court of appeal considers cases according to the rules of the court of first instance.

The defendant has the right to recognize the claim in whole or in part when preparing the case for trial or before the court is removed to the conference room by submitting a written application to the courts of first and appellate instances. If the claim is recognized by the defendant in full during the preparation of the case for trial, the court has the right to hold a preliminary court hearing and decide on the satisfaction of the claim if the recognition of the claim meets the requirements of Article 171 of the CPC.

If the court accepts the recognition of the claim, the judge decides to satisfy the claim without examining the circumstances of the case (see commentary to Article 171 of the CPC). In order to prevent abuse of the right, as stated above, part one of Article 115 of the CPC provides for the court's right to impose legal costs on the plaintiff when recognizing the claim as a defendant, if the filing of the claim is not caused by the defendant's guilty behavior.

When preparing a case for trial, the court may suspend the proceedings in connection with the need to carry out separate procedural actions or if there are grounds preventing the consideration of the case in accordance with articles 272, 273 of the CPC. These rules allow the court to suspend the proceedings in connection with the parties' appeal to the mediator, mediation or a participatory procedure, also at the stage of preparing the case for trial.

Termination of proceedings in the case at the stage of preparation of the case for trial is possible if there are grounds provided for in the subparagraphs 1), 2), 3), 4) and 5) Articles 277 of the CPC. The court is obliged to explain to the parties the consequences of such a procedural decision as the termination of the proceedings.

If there are grounds provided for in the sub-paragraphs 6), 7), 8), 9) According to Article 277 of the CPC, after a preliminary court hearing, it is necessary to appoint a case for trial to verify all the circumstances of the case. It is important to check them carefully at the court session, since upon termination of the proceedings, a second appeal to the court on a dispute between the same parties on the same subject is not allowed in accordance with the second part of Article 278 of the CPC. For example, by virtue of subparagraph 6), it is necessary to notify the parties, the mediator, and lawyers in order to verify the terms of the agreement, identify the parties' will to conclude it, clarify the legal consequences and possibly verify the terms of the agreement, as well as summon other persons who may be interested in the outcome of the case or whose interests are affected by such agreements.

If the court has a need to conduct a trial and if there is a reason specified in subparagraph 5), there are no legal obstacles to this.

The court may, at the stage of preparing the case for trial, leave the application without consideration on the grounds provided for in Article 279 of the CPC (in more detail, subparagraph 5) is discussed above).

When establishing the grounds for termination of the proceedings, leaving the application without consideration of part of the claims, the court may terminate the proceedings or leave the claim without consideration in part. If these actions can be performed in a preliminary court session without additional procedural actions, such as calling witnesses, etc., the court may decide to terminate the proceedings or leave the statement of claim without consideration in full or in part, and based on the results of the preliminary court session.

As mentioned above, in the definition on the preparation of a case for trial, the last action can also indicate the date of the appointment of a preliminary hearing. For example, in a case in which preparations began on December 1, it is possible to establish in the definition - "the procedural actions specified in the definition by the parties must be completed within ten working days. The preliminary meeting is scheduled for December 11 (from the author: - you can specify any date, but within 15 working days). To send a copy of the ruling on the preparation of the case for trial to the parties for execution."

A copy of the ruling on the preparation of the case for trial may not be sent to the parties if the amount of necessary actions is insignificant. You can limit yourself to sending notifications, requests, etc. A separate ruling on holding a preliminary court hearing is not issued. If the judge did not specify the date of the preliminary hearing in the ruling on the preparation of the case for trial, then this can be indicated by the relevant resolution of the judge.

The receipt of a request for assistance in obtaining evidence or conducting other procedural actions is not a reason for extending the time limit for preparing a case for trial or conducting various conversations with the parties. Any oral hearing should be preceded by a procedural action – the exchange of written documents, as described above.

A copy of the petition, depending on its subject matter, or a notification of this by the court is sent to the other party, to other persons participating in the case. If the petition is recognized as justified by the court, a request for evidence is sent. If it is necessary to discuss the submitted application, for example, for the appointment of a handwriting examination, the judge sets the day of the preliminary court session. It is necessary to notify the other party and other persons involved in the case in advance of the receipt of such a petition, to request their opinion on it, possibly simultaneously requesting samples of free signatures, etc. By the time the motion requesting a court hearing is discussed, there must be an exchange of written statements, feedback, and documents between the parties.

The preliminary court session summarizes the results of the preparation of the case for trial. The preliminary hearing is held upon completion of the preparation of the case for trial within the preparation period of 15 working days. The non-appearance of any of the summoned persons is not an obstacle to its holding. If both parties have not appeared, the court may postpone the preliminary court hearing with the appointment of a new time and place, notifying the persons involved in the case, but within the time limits set by the CPC – 15 working days. Therefore, it is very important that the day of the preliminary court hearing is not determined at the very deadline for the completion of the preparation. In cases of special complexity, the preliminary hearing may be held again in accordance with the requirements of the Supreme Court's regulatory Decree No. 21 of December 13, 2001 "On the preparation of civil cases for trial."

During the preliminary court session, the judge, in accordance with the requirements of Article 194 of the CPC, makes sure that the persons participating in the case are familiar with the procedural rights and obligations, and in case of ignorance explains to them the rights and obligations. At the preliminary meeting, the circumstances of the case are discussed, questions are asked, the nature of the disputed legal relationship and the circumstances conducive to reconciliation of the parties are determined. If there are grounds for receiving petitions, the preparation period is extended, indicating the actions that should be additionally performed, for example, to conduct an expert examination, make an inspection, etc. The issues of term extension are resolved according to the rules established by the first part of Article 164 of the CPC.

The omission of the limitation period is discussed during the preliminary examination of the case on the basis of the plaintiff's request to restore the missed period or the defendant's request to apply the limitation period. The court may, at the stage of preliminary consideration of the case, make a decision if the omission of the limitation period is indisputable and proven, without creating red tape in the case. It is necessary to take into account the provisions of paragraph 3 of Article 179 of the Civil Code that the expiration of the limitation period before filing a claim is the basis for the court's decision to dismiss the claim. The court's decision indicates the conclusions regarding the limitation period.

If the defendant does not participate in the preliminary hearing of the case for valid reasons, then a decision on the motion to skip the limitation period is possible when considering the case on its merits. If the circumstances of the omission of the limitation period are subject to investigation and, possibly, application to a part of the stated claims, it is advisable to discuss the application of the limitation period when considering the merits of the case, taking into account the interconnectedness of the claims. If the court determines that the reason for missing the limitation period is valid, the decision on such a request is made based on the results of the case review and is indicated in the judicial act. No decisions are taken on the petition based on the results of the preliminary meeting.

The minutes of the court session are conducted according to the rules provided for in the second part of Article 281 of the CPC. If the preliminary hearing ends with the issuance of a judicial act, audio and video recordings are carried out with the preparation of a short protocol. In other cases, the protocol is conducted at the discretion of the court by virtue of the second part of Article 281 of the CPC, since initially the parties exchange written documents that are certainly available in the case (copies or originals), a sufficiently complete record of the arguments of the parties and the evidence presented by them is ensured. In accordance with the requirements of the first part of Article 281 of the CPC, if all persons participating in the case fail to appear at the court session, audio - video recording is not carried out. By virtue of part four of Article 283 of the CPC, the Protocol must be prepared no later than three working days after the end of the court session, and the protocol on individual procedural actions no later than the next day after its commission. In complex cases, the minutes of the court session must be prepared and signed no later than ten working days after the end of the court session.

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