What's happened?
The Plenum of the Supreme Court of the Russian Federation supported at the meeting the draft resolution “On approval of the Rules for conducting judicial reconciliation.”
The document was developed by a working group of the Armed Forces of the Russian Federation in connection with the entry into force on October 25, 2019 of the Federal Constitutional Law of July 26, 2021 No. 3-FKZ and amendments to procedural codes (Arbitration Procedure Code of the Russian Federation, Civil Procedure Code of the Russian Federation and CAS of the Russian Federation) related to the improvement of conciliation procedures. According to the new legislation, the powers of the Plenum of the RF Armed Forces include approval of the Rules for conducting judicial conciliation and the formation and approval of a list of judicial conciliators. Only on the basis of such regulations can conciliation procedures be carried out during legal proceedings in courts of general jurisdiction and arbitration courts.
Signing the agreement.
The points on which the participants came to an agreement regarding the requirements that were stated at the beginning of the procedure are recorded as a conciliation agreement in writing, taking into account the norms that are set out in parts 1 - 3 of articles 63, 122 of the code.
This documentation must contain information regarding which the participants have agreed upon, regarding the conditions, magnitude and time periods for the fulfillment of mutual obligations or only by one participant to the other, as well as regarding the consequences in a situation of non-fulfillment voluntarily.
A conciliation agreement usually contains information about the following conditions:
- on suspension for the period of fulfillment of obligations, fulfillment thereof in installments;
- regarding finding a compromise when meeting requirements;
- that the debt has been recognized and the amount of the debt has been reduced;
- regarding the fulfillment of requirements through the use of other ways that comply with the current legislation of the Belarusian state.
The conciliation agreement, as a rule, prescribes the accounting of expenses that are needed to conduct a judicial procedure between the participants who signed such documentation. In a situation where there is no such clause in the agreement, the court deals with this issue in accordance with the Code of Criminal Procedure.
The conciliation agreement contains information regarding the signing of a new agreement by the parties, which can act as an annex to the agreement. Protection of this right regarding a new contract in a situation where obligations are not fulfilled voluntarily, then their execution is carried out according to the algorithm that is prescribed
The conciliation agreement is drawn up according to the number of parties that signed it, the court, where signatures are placed by the authorized representatives of the participants. In this situation, permission to take part in the reconciliation process and the signing of the agreement must be stated in the power of attorney issued to the representative under Article 79 of the Code.
What are conciliation procedures in court?
From October 25, 2019, all participants in a trial in a court of general jurisdiction or an arbitration court (with the exception of criminal proceedings) will be able to resort to special conciliation procedures. Carrying out such procedures is possible at any stage of the process and during the execution of a judicial act. These legislators included:
- negotiation;
- mediation, including mediation;
- judicial reconciliation.
This list is not exhaustive, that is, it is possible to use other conciliation procedures if this does not contradict the law. The courts will begin the reconciliation process according to the regulations on the basis of a request from the parties (parties) or upon the consent of the parties to the corresponding proposal of the court, which can be made orally or contained in the ruling on accepting the statement of claim (statement) for proceedings.
The parties will also be able to use conciliation procedures during the consideration of administrative cases. Judicial conciliators will coordinate the actions of the parties in this process.
How will reconciliation proceed in court?
According to the new regulations, judicial conciliation must take place in a separate room located in the court building. The period for completing the necessary procedures is established by the court in the ruling on judicial reconciliation; at the request of the parties, this period may be extended. The parties to judicial conciliation have the right:
- choose a judicial conciliator,
- make proposals on the procedure for reconciliation,
- declare the need for other persons to participate in judicial reconciliation,
- provide information necessary to resolve the dispute,
- ask questions to the other party and the judicial conciliator,
- express a request for an individual conversation with a conciliator, proposals for resolving the dispute and achieving reconciliation results,
- discuss proposals made by the parties regarding their feasibility and satisfaction of the interests of each party,
- apply for an extension of the procedure if its period has expired.
Judicial reconciliation, according to the draft regulations, will take place in several stages:
- Opening of judicial conciliation (opening speech by the judicial conciliator).
- Statement of the circumstances of the dispute and the interests of the parties.
- Formulation of issues for discussion by the parties.
- Individual conversation between the judicial conciliator and the parties and their representatives.
- Development of proposals to resolve the dispute.
- Reconciliation of the parties.
- Registration of the results of reconciliation, including the conclusion of a settlement agreement, reconciliation agreement, agreement on factual circumstances, drawing up a waiver of the claim, recognition of the claim.
- Completion of judicial conciliation.
The result of the application may be either a settlement agreement and a waiver of the claim, or its full or partial recognition. Judicial reconciliation can be completed upon the application of one or both parties, as well as due to the expiration of its term or termination by the judicial conciliator. The state fee paid for filing a statement of claim will not be returned to the parties. But they will be able to save on other legal costs.
Section I. General provisions
Article 1. Goals and objectives of judicial reconciliation
1. Judicial reconciliation is carried out in order for the parties to achieve a mutually acceptable result and resolve the conflict, taking into account the interests of the parties.
2. The objectives of judicial reconciliation are to correlate and bring together the positions of the parties in the case, to identify additional opportunities for resolving the dispute, taking into account the interests of the parties, and to assist them in achieving the result of reconciliation.
Article 2. Principles and legal basis of judicial reconciliation
1. Judicial conciliation is carried out on the basis of the provisions of the Code of Civil Procedure of the Russian Federation, the Arbitration Procedure Code of the Russian Federation, the CAS of the Russian Federation, legislation on the status of judges in the Russian Federation, and the provisions of these Regulations.
2. The principles of judicial conciliation are voluntariness, cooperation, equality of the parties, independence and impartiality of the judicial conciliator, confidentiality, and good faith.
Article 3. The principle of voluntariness
1. The parties participate in judicial reconciliation voluntarily. The candidacy of a judicial conciliator is determined by mutual agreement of the parties. The parties have the right to jointly determine the most appropriate procedure and result of reconciliation.
2. The party (parties) have the right to refuse to continue judicial reconciliation at any stage of its implementation by notifying other participants in judicial reconciliation in writing.
Article 4. Principle of cooperation
The parties to judicial conciliation cooperate with each other, with the judicial conciliator and with the court.
Negotiations between the parties are constructive and creative in nature, aimed at resolving the dispute, and take place in an atmosphere of trust and mutual respect.
Article 5. Principle of equality
The parties to judicial conciliation enjoy equal rights to determine the candidacy of a judicial conciliator, participants in negotiations, the rules and procedure for conducting judicial conciliation, individual work with a judicial conciliation, access to the information under discussion, the development and formulation of proposals for resolving the dispute, assessing their acceptability and feasibility, and exercising their rights and legitimate interests.
The judicial conciliator has no right, through his actions, to put any of the parties in a preferential position, nor to diminish the rights of one of the parties.
Article 6. Principle of confidentiality
1. The parties have the right to determine the scope of restrictions on the dissemination of information related to judicial reconciliation.
Unless the parties agree otherwise in writing, information obtained by the participants during judicial conciliation is confidential.
In particular, the parties, the judicial conciliator and other persons present during judicial reconciliation do not have the right, without the written consent of both parties, to refer, when considering the case in court, to the opinions or proposals expressed by one of the parties regarding possible reconciliation; admissions made by one of the parties during the procedure; manifestation of the readiness of one of the parties to accept the proposal for reconciliation made by the other party; information contained in a document prepared solely for judicial conciliation.
2. During judicial reconciliation, the parties have the right to disclose information to the extent deemed necessary for the successful settlement of the dispute.
All information created or received during judicial reconciliation, regardless of the form of the medium, is not subject to disclosure or distribution by participants in judicial reconciliation without the written consent of the parties.
3. Information about judicial reconciliation may be used for research, educational or informational purposes, provided that the anonymity of the parties is maintained.
Article 7. The principle of independence and impartiality of the judicial conciliator
1. The attitude of the judicial conciliator towards each of the parties is impartial, respectful and friendly.
The judicial conciliator ensures equal participation of the parties in judicial reconciliation.
2. The judicial conciliator is obliged to inform the court and the parties about any circumstances that may raise doubts about his independence and impartiality.
3. The judicial conciliator is independent and carries out his activities independently, without the participation of the judge in charge of the case.
Article 8. Requirements for judicial conciliators
1. A judicial conciliator is a retired judge who is included in the list of judicial conciliators, which is approved by the Plenum of the Supreme Court of the Russian Federation.
2. A retired judge who is involved in the administration of justice has no right to act as a judicial conciliator.
3. A retired judge who works in government bodies, local government bodies, state and municipal institutions, in trade unions and other public associations, as well as as an assistant to a deputy of the State Duma or an assistant to a member of the Federation Council of the Federal Assembly of the Russian Federation or an assistant to a deputy legislative (representative) body of a constituent entity of the Russian Federation or appointed to the position of commissioner for the rights of consumers of financial services, does not have the right to act as a judicial conciliator.
Article 9. Formation of a list of judicial conciliators
1. The list of judicial conciliators is formed and approved by the Plenum of the Supreme Court of the Russian Federation on the basis of proposals from the chairmen of the judicial panels of the Supreme Court of the Russian Federation, cassation courts of general jurisdiction, a military court of cassation, district arbitration courts, the Intellectual Rights Court, appellate courts of general jurisdiction, a military court of appeal , arbitration courts of appeal, supreme courts of republics, regional, regional courts, courts of federal cities, courts of an autonomous region, courts of autonomous districts, arbitration courts, district (naval) military courts on the candidacies of judicial conciliators from among retired judges who have expressed a desire to act in as a judicial conciliator, taking into account their characteristics of compliance with the requirements of this Regulation.
Proposals from courts of appeal of general jurisdiction, appellate military courts, arbitration courts of appeal, supreme courts of republics, regional, regional courts, courts of federal cities, courts of an autonomous region, courts of autonomous districts, arbitration courts, district (naval) military courts on candidates for judicial conciliators from The number of retired judges of these courts, as well as district courts, retired justices of the peace is collected by the relevant cassation courts of general jurisdiction, military cassation court, district arbitration courts and, together with the proposals of these courts, they are sent to the Supreme Court of the Russian Federation.
2. When compiling the list, the work experience as a judge, scientific experience, specialization, region of residence of the candidate, activities carried out by the retired judge since his resignation, and compliance of this activity with the legislation on the status of judges and the code of judicial ethics are taken into account.
3. The list of judicial conciliators, as well as these Rules, are posted on the official website of the Supreme Court of the Russian Federation on the Internet information and telecommunications network.
This Regulation and relevant excerpts from the list of judicial conciliators, containing information about those judicial conciliators whose information was provided by the courts, are posted on the official websites of courts and justices of the peace on the Internet.
