Facts not subject to proof in the arbitration process. Grounds for exemption from proof in the arbitration process. Agreement of the parties on the circumstances and recognition of the party

Grounds for Exemption from Evidence in Arbitration Proceedings
One of the grounds for exemption from proving previously established circumstances in relation to the same persons is the prejudice of facts. Prejudice (praejudicialis), referring to a previous judgment, means the prejudice of certain facts that do not need to be proven again.
According to Article 69 of the Arbitration Procedure Code Russian Federation the circumstances established by a judicial act of an arbitration court that has entered into legal force in an earlier considered case are not proved again when an arbitration court considers another case in which the same persons participate.
A decision of a court of general jurisdiction that has entered into legal force on a previously considered civil or criminal case is binding on the arbitration court considering the case on questions about the circumstances established by the decision of the court of general jurisdiction and related to the persons participating in the case.
According to the above procedural norm, the factual circumstances investigated and assessed earlier within the framework of certain legal relations, established by the court and recorded by the court decision, cannot be refuted if it is necessary to re-examine them by the courts.
Prejudice has objective and subjective limits.
Subjective limits are the presence of the same persons participating in the case, or their successors in the initial and subsequent processes. If other persons also participate in the case considered by the arbitration court, for them the facts established in the decision of the court of general jurisdiction do not have prejudicial significance and are established on general grounds.
Thus, a court decision adopted by way of special proceedings on establishing the fact that a person owns shares or a share in authorized capital of the company is evidence in a case in which a dispute over the right to these shares (share) is considered, and does not have prejudicial effect in relation to persons who did not participate in the case considered in the special proceedings. Evidence presented by such persons, which refutes the existence of the right to shares (share) of a person in respect of which the issue of their ownership is resolved in a special proceeding, is evaluated by the court considering the dispute on the right, according to the general rules of Art. 71 of the Arbitration Procedure Code.
In accordance with the Decree of the Plenum of the Supreme Arbitration Court of the Russian Federation dated October 31, 1995 "On the Application of the Arbitration Procedure Code in Considering Cases in the Court of First Instance", it is explained that if other persons are involved in the new case, for them the facts established in the previous decision , do not have pre-judicial significance and are established on a general basis.
However, the indication in paragraph 2 of Article 69 of the Arbitration Procedure Code of the Russian Federation on the participation in the previously considered case and the case under consideration of the same persons does not mean the complete identity of the composition of the interested parties in the previous and subsequent processes.
Circumstances established by an arbitration court decision that has entered into legal force cannot be disputed in another legally initiated process by a person participating in an earlier considered case, even if the other party has not previously participated in this case.
The most typical example of the presence of prejudicial facts are cases involving third parties who do not file independent claims on the subject of the dispute. The facts established in the decision of the arbitral tribunal are not subject to proof when considering a recourse claim in a new process.
Objective limits relate to the circumstances established by a judicial act that has entered into legal force in a previously considered case.
As an example, we can cite the decision of the FAS of the East Siberian District of September 14, 2009 No. in case A74-244 / 09, the Arbitration Court satisfied the claim for the collection of interest for the use of other people's funds, since the fact and amount of the unjustified retention of funds by the defendant, as well as the fact that at the time of the conclusion of the contract of sale the defendant knew that there were no legal grounds for deductions of the specified amount, established by judicial acts that have entered into legal force on a previously considered case.
The Presidium of the Supreme Arbitration Court of the Russian Federation in Resolution No. No. 5016/96 came to the conclusion that if a legal fact established by the court of first instance was not the subject of proceedings and was not the subject of proof in the first case, it does not have prejudicial significance for the court considering another case in a dispute between the same parties.
Thus, paragraph 2 of Article 69 of the APCRF requires precisely the establishment of a circumstance and allows us to speak about the obligation of the court not only to review the evidence confirming this fact (to check it for relevance and admissibility), but also to evaluate the evidence, making a conclusion about the presence or absence of the desired fact.
Prejudice is formed exclusively by those circumstances that were directly established and investigated by the court, which was reflected in the motivational part of the judicial act, and the circumstances that were not assessed by the court cannot be considered as established by the court and do not acquire the property of prejudice.
It also follows from Article 69 of the Arbitration Procedure Code of the Russian Federation that the facts established by the ruling of the arbitration court may also have prejudicial significance. For example, the defendant may also refer to the fact of the fact of the plaintiff's refusal of the claim, which is identical to the repeated one, established by the ruling of the arbitration court that has entered into legal force.
Prejudice means not only the absence of the need to prove previously established circumstances, but also prohibits their refutation. Such a provision exists until the judicial act in which these facts are established is canceled in the manner prescribed by law.
During the consideration of the case, the court examines the indicated circumstances, which, being established by a judicial act that has entered into legal force, are not subject to proof again when considering a claim to challenge the contract with the participation of the same persons (Part 2 of Article 69 of the Arbitration Procedure Code of the Russian Federation).
The courts should also keep in mind that regardless of the composition of the persons involved in the case on recovery under the contract and in the case on the claim for challenging the contract, the assessment given by the court to the circumstances established in the case considered earlier is taken into account by the court considering the second case. In the event that the court considering the second case comes to different conclusions, it must indicate the appropriate motives.
Thus, prejudice extends to all the facts established in the judicial act. Among these facts there may be those that turned out to be indisputable, and those that the court erroneously included in the subject of proof in the case. In any case, all the facts that the court considered established in a judicial act that has entered into legal force will have prejudice. At the same time, it is important that the judicial act must have already entered into force.

The concept of facts not subject to proof

By general rule Part 1 Art. 65 of the Arbitration Procedure Code of the Russian Federation, the burden of proof in an arbitration case is distributed among the participants in the process, each of which must provide evidence of their claims or objections. However, it is not always necessary to carry out the procedure of proof, i.e., the establishment of facts on the basis of relevant and admissible evidence, in order to establish the circumstances relevant to the arbitration case.

Definition 1

Facts that are not subject to proof in the arbitration process are such circumstances of the arbitration case that are considered established without proof.

At the same time, redistribution of the burden of proof should be distinguished from facts not subject to proof. For example, according to Part 3 of Art. 189 of the Arbitration Procedure Code of the Russian Federation in the framework of proceedings in cases of public relations, the obligation to prove the legality of actions (decisions) of public entities is assigned not to a private person - the applicant, but to the public entity that adopted the contested act or committed the contested action.

In total, there are three types of facts that are not subject to proof in the arbitration process:

general known facts;
pre-judicially established facts;
facts admitted by the parties.

Common Facts

As follows from Part 1 of Art. 69 of the Arbitration Procedure Code of the Russian Federation, if the arbitration court recognizes any fact as well-known, this fact is considered established without proof.

Remark 1

The sign of well-known means that this fact is known to a wide range of people, including the arbitration court. It is customary to single out world-famous facts, facts known in Russia, local facts (for example, the fact of a natural disaster).

If, within the framework of the arbitration case, it was decided that the fact, due to well-known knowledge, is not subject to proof, this should also be referred to in the court decision itself (this provision is relevant for local well-known facts that may not be known to the court of cassation).

Prejudicially established facts

Definition 2

Prejudice is the recognition of facts not subject to proof, which are established by a court decision adopted in another legal case, which has entered into force.

Definition 3

The prejudicial value is an important consequence of the legal force of a court decision, a way to ensure its general binding on the territory of Russia.

At the same time, there is not only sectoral prejudice (obligation of other arbitral awards for arbitration courts), but also intersectoral (obligation of facts established within the framework of criminal, administrative, civil processes). The only way to overcome the pre-judicial significance of a judicial act is to cancel it (in whole or in part).

AT legal doctrine highlight the limits that the phenomenon of prejudice has.

subjective limit. In this sense, the prejudice is preserved in the circle of persons, i.e. if the same persons (their successors) participate in different legal cases.
objective limit. In this sense, prejudice indicates the totality of facts that has already been established by the court when considering another legal case.

At the same time, the question is ambiguous, which facts are considered prejudicially established - positive (i.e., the fact is established) or negative (i.e., the fact is not established). In judicial practice, one can find examples of both positive and negative prejudice.

Let us single out the varieties of prejudicial facts of the arbitration process.

Facts established by the decision of the arbitration court (arbitration prejudice). In this case, the arbitration court, without proof, accepts all the circumstances established in the previous proceedings involving the same persons.
The facts established by the decision on civil case(civil prejudice). In this case, the arbitration court also accepts all the circumstances established by the court of general jurisdiction regarding the persons participating in the arbitration case (subjective limit).
Facts established by the verdict (criminal prejudice). Due to the differences between civil and criminal proof in criminal prejudice, both the subjective and objective limits are formulated much more narrowly. So, the arbitration court, without proof, accepts only information about the event of a crime (committing certain actions) and the person guilty of committing them. Note that other acts in addition to the verdict (for example, the decision to terminate the criminal case) in the norm of Part 4 of Art. 69 of the Arbitration Procedure Code of the Russian Federation are not named.
Facts confirmed by a notary (notarial prejudice). For an arbitration court, notarized facts have prejudicial effect only if none of the participants in the arbitration process has declared falsification of evidence (part 5 of article 69 of the APC of the Russian Federation).

Remark 2

Beyond the scope regulation the prejudice of decisions on administrative offenses. Arbitrage practice disagrees on this issue: the Plenum of the Supreme Arbitration Court of the Russian Federation indicated that such decisions can be taken into account by the arbitration court, without having a pre-judicial value (resolution dated 02.06.2004 No. 10). The Plenum of the Supreme Court of the Russian Federation used the method of analogy and equated the prejudicial value of decisions on administrative offenses to criminal prejudice (Decree No. 23 of December 19, 2003).

Facts admitted by the parties to the arbitration process

One of the tasks of the arbitral tribunal is to assist the parties in reaching an agreement on the issue of assessing evidence. Recognition by the parties of the relevance and admissibility of evidence presented by opponents simplifies the process of proving and making a decision.

Let us point out the rules applied for the admission of facts by the parties.

An agreement between the parties on the issue of assessing evidence can be reached both within the framework of the court session and outside the process.
Such an agreement is fixed by means of statements by both parties in writing and entered into the minutes of the court session.
Recognition of the fact relieves the party that provided the relevant evidence from the need to prove it, and the court from the assessment of evidence.
The novelty of recognized facts is an indication of the ways of their non-recognition. So, it is presumed to be a recognized fact that is not directly disputed by the party or disagreement with which follows from other evidence available in the case (part 3.1 of article 70 of the Arbitration Procedure Code of the Russian Federation).
The arbitral tribunal has the right to refuse to accept a confession of facts based on the unfair behavior of the party that declared such a confession (for example, concealment of other facts), as well as delusion or illegal actions against it.

Recognition of the parties as a circumstance that does not require proof

Any judicial authority, regardless of the instance, at any stage of the judicial process, should assist in reaching an agreement between the parties aimed at assessing the evidence. Accordingly, the court, in order to achieve the tasks assigned to it, must show the initiative it has, use all the powers available to it and the authority it has as a body exercising power. If the circumstance was recognized by both parties, the court perceives them as exhaustive facts for which no further proof is required. In such a situation, coercion, violent actions, deceit, threat or misleading of one side of the proceedings by the other is unacceptable. Such actions are also unacceptable on the part of the judicial body conducting proceedings on the case. If one party has recognized the circumstances on which the other party bases its claims or, on the contrary, objections, it may submit to the court an agreement of the parties on the circumstances drawn up in the following forms:

in the form of a handwritten document;
in the form of a printed document;
in the form of an oral statement, which was fixed in the minutes of the meeting.

It is worth noting the fact that the written statement required to obtain an exemption from proving the circumstances recognized by the parties will have any legal force only if there are signatures of the plaintiff and defendant participating in the case.

In drawing up such a statement, the party may be assisted by a representative or any other person participating in the proceedings. The Arbitration Procedure Code of the Russian Federation provides for the possibility of obtaining assistance in drawing up an application from persons who are not directly involved in the consideration of the case on their own.

Agreement between the parties on circumstances not requiring proof

Any agreement that was reached between the parties to the proceedings, whether in the course of proceedings in the courtroom or outside it, must be certified as a statement drawn up by them. This document, which gives an exemption from proving the circumstances recognized by the parties, must not only be drawn up in writing, but also subsequently entered into the minutes drawn up by the secretary of the court session. If one of the parties admits the facts on which the other party to the proceedings bases the claims, this second party is automatically exempted from the need to prove such circumstances. The fact that the parties acknowledge the circumstances must be recorded in the minutes of the court session.

The entry is certified by the signatures of both the plaintiff and his opponent.

If the parties have made their confession in writing, this document must be attached to the case file. The circumstances on which one of the parties participating in the proceedings in this case bases its claims are considered recognized in several cases:

unless the other party has directly challenged them;
if the other party has not expressed any disagreement;
unless the disagreement is in any way derived from the other evidence available in the case.

It is worth emphasizing that the court does not always recognize the possibility of obtaining an exemption from proving the circumstances recognized by the parties. This exception consists in the fact that the court has other oral or material evidence that gives it reason to assume that the recognition of the facts by the parties was made to conceal the real circumstances of the case. Also, a confession can be recognized as not corresponding to the truth if it was made under the influence of deceit, threat or violence. Information about this should be indicated in the minutes of the meeting. In any of the above situations, the circumstances must be proved in accordance with the general rules. The circumstances recognized by both parties participating in the process are immediately accepted by the judicial body investigating the case. Such acceptance must be made immediately upon receipt of the relevant petition or application, and the court must not verify such evidence in further proceedings.

Cases when the court does not accept the parties' recognition of circumstances

The legislative acts of the federal level, which consider the procedure for judicial proceedings in arbitration cases, contain an exhaustive list of situations in the event of which the judge conducting the proceedings cannot accept the fact that certain circumstances are recognized by both parties. The judge has the right not to accept the recognition by the parties of circumstances that are directly related to the case considered during the hearing in the following situations:

in cases where the judge has other evidence that gives him reason to believe that the admission of facts by the parties was made in order to conceal the real circumstances of the case;
in some cases, when the judge has evidence that gives him reason to believe that the recognition by the parties of the circumstances subject to proof was made under the influence of deceit on the part of the second participant in the proceedings, threat, psychological or physical violence.

In accordance with the requirements of the Arbitration Procedure Code of the Russian Federation, if there are grounds to assume that the recognition by the parties of the circumstances of the case was made in order to hide the real development of events that became the basis for the dispute, the court must indicate this information in the minutes of the court session.

In such a situation, a separate judicial act is not required.

If the court reveals the fact of a false recognition of circumstances, such facts must be proven on a general basis.

Grounds for exemption from proof in the arbitration process. Agreement of the parties on the circumstances and recognition of the party

The circumstances included in the subject of proof are subject to proof in court. However, there are two exceptions to this general rule, listed in Art. 69 and 70 APC.

By virtue of Art. 69 of the APC, the circumstances of the case, recognized by the arbitration court as well-known, do not need to be proven. The circumstances established by a judicial act of an arbitration court that has entered into legal force in an earlier considered case shall not be proved again when an arbitration court considers another case in which the same persons participate.

A decision of a court of general jurisdiction that has entered into legal force on a previously considered civil case is binding on the arbitration court considering the case on the circumstances established by the decision of the court of general jurisdiction and related to the persons participating in the case.

A court verdict in a criminal case that has entered into legal force is binding on the arbitration court on the questions of whether certain actions took place and whether they were committed by a certain person.

To recognize a fact as well known, it is required that it be known to a wide range of people, including the composition of the judges considering the case. Well-known facts are divided into world-famous, known in the territory of the Russian Federation, locally known. The persons participating in the case are not deprived of the right to present arguments refuting the well-known facts. A note about the well-known local facts in the relevant territory must be made in the court decision, about facts known throughout the world or on the territory of Russia, a note is not made in the court decision.

Prejudice has its objective and subjective limits. As a general rule, the objective limits of prejudice relate to the circumstances established by a court decision that has entered into legal force in a previously considered case. Subjective limits are the presence of the same persons participating in the case, or their successors in the initial and subsequent processes.

Prejudice not only means that there is no need to prove previously established circumstances, but also prohibits their refutation. Such a provision exists until the judicial act in which these facts are established is canceled in the manner prescribed by law.

According to Art. 70 of the APC, the recognition by a party of the circumstances on which the other party bases its claims or objections, relieves the other party from the need to prove such circumstances. The arbitration court enters the fact of recognition by the parties of specific circumstances in the minutes of the court session, this record is certified by the signatures of the parties. If the confession was made in writing, it shall be attached to the case file. However, recognition of the facts made by a party is not mandatory for the arbitral tribunal. If the arbitration court has evidence that gives grounds to believe that the recognition by the party of specific circumstances was made in order to conceal the actual circumstances or under the influence of deception, violence, threats, delusions, then such recognition is not accepted by the court, these circumstances are indicated in the minutes of the court session. If the court does not accept the party's confession about the circumstances of the case, they (circumstances) are subject to proof on a general basis.

The circumstances recognized by the parties as a result of an agreement reached between them on the assessment of circumstances are accepted by the arbitration court as facts that do not require further proof. The agreement of the parties reached in the court session or out of the court session on the circumstances shall be certified by their statements in writing and recorded in the protocol of the court session.

The factual circumstances recognized and certified by the parties in the manner prescribed by Art. 70 of the Arbitration Procedure Code, if they are accepted by the arbitration court, they are not checked by it in the course of further proceedings on the case.

Chapter 7 of the Arbitration Procedure Code of the Russian Federation;

Plan

Prejudicial facts

Common Facts

The circumstances included in the subject of proof are subject to proof in court. However, there are 2 exceptions to this general rule. The following are not subject to proof:

Prejudicial facts;

Well-known facts (Article 70 of the Arbitration Procedure Code of the Russian Federation).

prejudice facts. Prejudice (from Latin praejudicialis - referring to a previous judgment) means the prejudice of certain facts that do not need to be proven again. Prejudice has its objective and subjective limits. As a general rule, the objective limits of prejudice relate to the circumstances established by a court decision that has entered into legal force in a previously considered case. Subjective limits are the presence of the same persons participating in the case, or their successors in the initial and subsequent processes. In accordance with the resolution of the Plenum of the Supreme Arbitration Court of the Russian Federation of October 31, 1996 N 13 "On the application of the Arbitration Procedure Code when considering cases in the court of first instance", if other persons are involved in the new case, for them the facts established in the previous decision, have no pre-judicial value and are established on a general basis. A positive solution to the issue of prejudice requires the presence of both objective and subjective limits.

The most typical example of the presence of prejudicial facts are cases involving third parties who do not make independent claims regarding the subject of the dispute. The facts established in the decision of the arbitral tribunal are not subject to proof when considering a recourse claim in a new process.

The Arbitration Procedure Code of the Russian Federation provides for the prejudice of the facts established in the decision of the arbitration court and the court of general jurisdiction in civil and criminal cases. The Arbitration Procedure Code of the Russian Federation speaks of the prejudice of those that have entered into force judicial acts arbitration court. The question of the objective limits of the prejudice of decisions of courts of general jurisdiction is resolved somewhat differently. Part 3 Art. 69 of the Arbitration Procedure Code of the Russian Federation reads: "Entered into force judgment of a court of general jurisdiction in a previously considered civil case, it is mandatory for the arbitration court considering the case, on questions about the circumstances established by the decision of the court of general jurisdiction and related to the persons participating in the case.

The verdict of a court of general jurisdiction that has entered into legal force is binding on the arbitration court considering another case on the questions of whether certain actions took place and by whom they were committed. Obviously, other circumstances established by the verdict of a court of general jurisdiction do not have prejudice for consideration of the case by an arbitration court. Thus, in relation to the verdict of the court, limited prejudice is established in terms of an objective criterion. Establishment by a final judgment of a court of general jurisdiction of the fact of committing individual, which was the sole executive body legal entity, a tax crime in the form of non-payment of tax from an organization does not relieve the tax authority from the obligation to prove the validity of the decision to recover tax arrears, penalties and fines from the taxpayer.

Circumstances established by administrative, investigating and prosecutorial bodies are not prejudicial and are subject to proof in an arbitration court. At the same time, the acts of these bodies, being written evidence, can be (and sometimes should be) brought to arbitration.

well-known facts. They are also not subject to proof. The law refers to the well-known facts of the circumstances of the case, recognized by the arbitration court as well-known, which do not need to be proven (part 1 of article 69 of the APC of the Russian Federation). To recognize a fact as well known, it is required that it be known to a wide range of people, including the composition of the judges considering the case.

Well-known facts are divided into world-famous, known on the territory of the Russian Federation, locally known. The date of the accident at the Chernobyl nuclear power plant (April 26, 1986) is a well-known fact. Due to the magnitude of the consequences of this accident, it became known far beyond the borders of Ukraine. The accident at the Mayak production association is a clear example of the appearance of a fact that is well known in Russia. Until recently, little was known about this accident, which took place in 1957. At present, all the inhabitants of Russia know about it. Local well-known facts may include fires, floods, avalanches, etc., which took place in a district, city, region.

However, the persons participating in the case are not deprived of the right to present arguments refuting the well-known facts.

A note about the general knowledge of local facts in the relevant territory should be made in the court decision, such a mark is necessary for higher authorities in case the case is reviewed. Facts known all over the world or on the territory of Russia are not noted in the judgment because they are known to the higher court.