Civil Procedure Code, and the order of the Prosecutor General of the Russian Federation on ensuring the participation of the prosecutor in civil proceedings.

There are 2 forms of prosecutor’s participation in the consideration of civil cases by courts:

1. The prosecutor may file claims and statements in court on his own behalf that is, to initiate a civil case in order to protect rights, freedoms and legitimate interests certain subjects specified in the law. these include:

A) individual citizens who, due to health reasons, age, or other valid reasons, cannot independently defend their rights and legitimate interests. When filing an application or claim, the prosecutor must provide evidence confirming the impossibility of presenting it by the citizen himself, except in cases where the prosecutor appeals to the defense social rights in the field of labor or service relations, protecting the interests of family, childhood, motherhood, paternity, housing rights of citizens in the state or municipal housing stock, health care, ensuring the right to favorable environment, as well as social protection of citizens. For example, prosecutors can file lawsuits to declare a marriage invalid, to deprive of parental rights, to pay employees the wages due to them, to compensate for moral damages to minors, and so on.

B) An indefinite circle of people. For example, in the case of a prosecutor challenging legal acts issued by various bodies or officials. Or about stopping industrial production that harms health or pollutes the environment, etc.

IN) Public entities, that is, the Russian Federation, constituent entities of the Russian Federation, and municipal entities. For example, on the invalidation of cases that violate the rights of these subjects. Or about compensation for harm caused as a result of the guilty actions of specific individuals.

in all of the above cases, the prosecutor during the trial is vested with almost all the rights and obligations of the plaintiff in the case, except for the right to enter into a settlement agreement and the obligation to bear legal costs. Thus, the prosecutor must present evidence confirming the stated requirement, give explanations about these requirements, answer questions from the court and other participants in the process, submit the necessary petitions, as well as perform other procedural actions. In judicial debates, the prosecutor speaks first, expressing his opinion on the resolution of the case on the merits. If during the trial the prosecutor comes to the conclusion that the claims he has made are not justified, he must refuse to support these claims. The court may terminate the proceedings only if the person in whose interests the prosecutor applied or his legal representative agrees with the position of the prosecutor.

2. The prosecutor enters into a process initiated at the initiative of other persons in order to provide an opinion on the merits of the case, this is possible in cases provided for by federal laws. For example, in cases of eviction, reinstatement at work, compensation for harm caused to life or health, adoption of a child or cancellation of adoption, adoption of a child, forced hospitalization in a psychiatric hospital, recognition of a citizen as incompetent.

The absence of a prosecutor notified of the time and place of the trial does not interfere with the trial, except in cases where the law provides for the mandatory participation of the prosecutor in the consideration of the case. By participating in the trial, the prosecutor has the right to familiarize himself with all the materials of the case, express his opinion on the legality of the judicial composition in the case, on the need to satisfy the requests of the participants in the trial. He can ask questions to the participants in the case and perform other procedural actions, but unlike the first form of participation, the prosecutor does not give explanations on the merits of the case and does not participate in the debates of the parties. At the end of the trial, based on the evidence and established facts, the prosecutor gives an opinion on the merits of the case considered. The prosecutor participating in the civil case is obliged to appeal any illegal judicial act by filing cassation or statements of appeal as well as participate in the review by the court of decisions that have not entered into force.

Appealing judicial acts that have entered into legal force and participating in their review by the court is similar to criminal proceedings.

48 Requirements for candidates for the positions of prosecutors and their appointment procedure O: Federal Law “On the Prosecutor’s Office of the Russian Federation”

Prosecutors and investigators can be citizens Russian Federation having a higher legal education and possessing the necessary professional and moral qualities, capable of performing the duties assigned to them due to health reasons. Upon their appointment to a position, a probationary period of up to 6 months may be established. In exceptional cases, persons studying at higher educational institutions with a legal specialty may be appointed to the positions of assistant prosecutors and investigators in the prosecutor's offices of cities and districts and equivalent prosecutor's offices.

A person appointed to a position for the first time takes the oath of prosecutor (investigator). The procedure for taking the oath is established by the Prosecutor General of the Russian Federation.

Persons at least 25 years of age who have worked as a prosecutor or investigator in the prosecutor's office for at least 3 years are appointed to the positions of city, district, and equivalent prosecutors.

Persons at least 30 years of age who have worked as a prosecutor or investigator in prosecutorial bodies for at least 5 years are appointed to the positions of prosecutors of constituent entities of the Russian Federation and equivalent prosecutors.

In accordance with the Federal Law “On the Prosecutor's Office of the Russian Federation”, the prosecutor and investigator, scientific and teaching staff of scientific and educational institutions of the prosecutor's office system of the Russian Federation are assigned class ranks in accordance with their positions and length of service. The Prosecutor General of the Russian Federation may also assign class ranks to other employees of the bodies and institutions of the prosecutor's office.

The procedure for assigning class ranks is determined by the “addition of class ranks of prosecutorial employees,” approved by the President of the Russian Federation. Prosecutor's employees are subject to certification. Features of appointment to the positions of military prosecutors and investigators are regulated by Art. 48 Federal Law “On the Prosecutor's Office of the Russian Federation”. 1 The positions of military prosecutors and investigators are reserved for officers who are serving in military service under an act or conscription and who meet all the requirements for employees of the prosecutor's office. Officers of the military prosecutor's office have the status of military personnel and serve in the Armed Forces of the Russian Federation and other troops in accordance with the law of the Russian Federation “On military duty and military force"and have the rights and benefits established by the law of the Russian Federation "On the status of military personnel." The conscription and entry of citizens into military service by the military prosecutor's office, their transfer to the reserve and retirement are carried out on the recommendation of the Chief Prosecutor. The positions of military prosecutors and investigators and their corresponding military ranks are included in the lists of military positions. The assignment of military ranks to military prosecutors and investigators is carried out upon the proposal of the relevant military prosecutor in the manner established for military personnel. Military ranks of senior officers are assigned by the President of the Russian Federation on the proposal of the Prosecutor General of the Russian Federation.

The prosecutorial ranks of officers of the military prosecutor's office correspond to the class ranks of prosecutorial peaks of the territorial prosecutorial bodies. certification of military prosecutors and investigators in the manner established by the Prosecutor General of the Russian Federation for all prosecutorial employees, taking into account the duties military service. Im considering professional experience and qualifications, qualification classes are assigned in the manner determined by the Prosecutor General.

In accordance with Art. 42 of the Federal Law “On the Prosecutor's Office of the Russian Federation”, any verification of a report of an offense committed by a prosecutor or investigator of the prosecutor's office, the initiation of a criminal case against them (except for cases where the prosecutor or investigator is caught committing a crime), and the conduct of an investigation are the exclusive competence of the prosecutor's office. During the investigation of a criminal case initiated against a prosecutor or investigator, they are removed from office. Detention, bringing, or personal search of the prosecutor and investigator or their belongings and the transport they use are not allowed, except in cases where this is provided for by federal law to ensure the safety of other persons, as well as when detained at the time of the commission of a crime.

Labor relations of prosecutorial employees are regulated by the labor legislation of the Russian Federation and the Regulations on service in the bodies and institutions of the prosecutor's office of the Russian Federation, approved State Duma Federal Assembly of the Russian Federation. Labor relations of other employees of the prosecutor's office are regulated by Russian labor legislation.

For long and impeccable service, prosecutors may be awarded by the Prosecutor General with the badge “Honorary Worker of the Prosecutor's Office of the Russian Federation. The procedure for presentation and awards is determined by the Prosecutor General (Article 43 of the Federal Law “On the Prosecutor’s Office of the Russian Federation”).

The same law (Article 44) regulates the material and social security of prosecutorial employees. Their salary consists of official salary, additional payments for class rank, length of service, special working conditions, percentage bonus for academic degree, monetary incentives (bonuses)

Measures of legal and social protection of prosecutors and investigators are defined in Art. 45 of the Federal Law, which states that prosecutors and investigators, being

representatives of state power are under special protection of the state, as well as their close relatives (and in exceptional cases other persons whose life and health are being encroached upon in order to impede the legitimate activities of prosecutors and investigators), as well as their property.

Prosecutors and investigators have the right to constantly carry, store and use service firearms and special protective equipment. In addition, prosecutors and investigators are subject to mandatory state personal insurance at the expense of the federal budget.

6.3. Participation of the prosecutor in the consideration of civil cases by the court

According to Part 3 of Art. 35 of the Law on the Prosecutor's Office, as well as Art. 45 of the Code of Civil Procedure of the Russian Federation, the prosecutor, when carrying out civil proceedings, has the right to apply to the court with a statement or to intervene in the case at any stage of the process, if this is required by the protection of the rights of citizens and the interests of society or the state protected by law. The purpose of the prosecutor's participation in civil process is to protect the interests of the Russian Federation, constituent entities of the Russian Federation, municipalities or protection of the rights, freedoms and legitimate interests of an indefinite number of persons. In accordance with Part 3 of Art. 131 of the Code of Civil Procedure of the Russian Federation, in the event of a prosecutor’s appeal to protect the legitimate interests of a citizen, the application must contain a justification for the impossibility of bringing a claim by the citizen himself in relation to the instructions of Part 1 of Art. 45 of the Code of Civil Procedure of the Russian Federation, since the prosecutor has the right to bring such a claim only in cases where a citizen, for reasons of health, age, incapacity and other valid reasons, cannot personally go to court (for example, claims to invalidate transactions that are contrary to the law, for deprivation of parental rights etc.).
Prosecutors have the right to submit appropriate applications for the issuance of a court order (for example, for demands for the collection of accrued but unpaid wages).
Cases arising from civil law and public legal relations may be considered by both courts of general jurisdiction and arbitration courts. Therefore, the prosecutor must correctly determine the jurisdiction of the civil case.
When preparing any statement or claim, the prosecutor checks whether the person whose interests are being protected has the right to go to court. It should be taken into account that the prosecutor has the right to go to court in defense of incompetent citizens.
In Art. 134 of the Code of Civil Procedure of the Russian Federation contains an exhaustive list of grounds for refusing to accept a statement of claim. The procedural act issued by the court is a ruling. It can be appealed by the prosecutor in accordance with the procedure established by law.
The prosecutor must ensure completeness and argumentation when preparing and filing claims and applications to the court, present the necessary and comprehensive evidence to the court, taking into account that, in accordance with procedural legislation, each party must prove the circumstances to which it refers as the basis for its claims and objections .
When preparing a statement of claim, prosecutors take into account that the correct qualification of controversial legal relations, the definition of the circle of participants in the process, as well as the definition of the subject of evidence in the case have important and contribute to the court making a lawful and informed decision.
The second form of participation of the prosecutor in the court of first instance is his entry into the ongoing process to give an opinion on the merits of the dispute.
The basis for such participation of the prosecutor is a direct indication of the law. It includes cases: on recognizing a citizen as missing or declaring a citizen dead (Article 278 of the Code of Civil Procedure of the Russian Federation); on recognizing a citizen as having limited legal capacity or incapacity (Article 284 of the Code of Civil Procedure of the Russian Federation); on deprivation of parental rights, on restoration of parental rights, on restriction of parental rights (Articles 70, 72, 73 of the RF IC); on establishing the adoption of a child (Article 273 of the Code of Civil Procedure of the Russian Federation); on the forced hospitalization of a citizen in a psychiatric hospital and the extension of the period of such hospitalization (Article 304 of the Code of Civil Procedure of the Russian Federation); on declaring a minor fully capable (Article 288 of the Code of Civil Procedure of the Russian Federation); on the protection of voting rights and the rights of citizens to participate in a referendum (Article 260 of the Code of Civil Procedure of the Russian Federation); on challenging regulatory legal acts (Article 252 of the Code of Civil Procedure of the Russian Federation); about eviction, reinstatement; on compensation for harm caused to life or health (Article 45 of the Code of Civil Procedure of the Russian Federation).
The legal means of exercising the powers of the prosecutor in the court of first instance are: 1) statements; 2) petitions; 3) conclusion on the merits of the case as a whole.
A statement, as one of the legal means of influence of the prosecutor, is used by him to raise the issue of recusal, for oral protests against the actions of participants in the process, which may lead to a violation of the law, etc. A timely and reasonable statement of the prosecutor allows both to prevent a possible violation of the law and to help the court in a timely manner eliminate it.
The prosecutor's petitions may relate to a variety of issues: examination of evidence, bringing new persons into the process, postponing the trial of the case, etc. Moreover, such petitions must contain an indication of the goals (for example, when presenting additional evidence), formulated questions (when ordering an examination), and references to the rules of procedural law. Requests may be made either in writing or orally.
The prosecutor's conclusion on the case concludes the consideration of the case on its merits. The prosecutor speaks before the arguments of the parties. In conclusion, the prosecutor must finally, taking into account all the changes that occurred during the trial, give a legal qualification of the disputable material legal relations that arose between the parties. The prosecutor's conclusion ends with his conclusions regarding a possible, from the prosecutor's point of view, method of resolving the conflict situation.
In accordance with the Federal Constitutional Law “On the Judicial System of the Russian Federation” and the Federal Law “On Magistrates in the Russian Federation” in the constituent entities of the Federation, the competence of magistrates includes the following cases: on issuing a court order; on divorce if there is no dispute between the spouses about children; on the division of jointly acquired property between spouses; other cases arising from family legal relations, with the exception of cases of challenging paternity (maternity), establishing paternity, deprivation of parental rights, adoption of a child; cases of property disputes where the cost of the claim does not exceed 500 times the minimum wage established by law at the time of filing the application; cases arising from labor relations, with the exception of cases of reinstatement; cases on determining the procedure for using property (Article 23 of the Code of Civil Procedure of the Russian Federation).
The civil procedure law does not contain any restrictions on the participation of the prosecutor in the consideration of these cases. In civil proceedings, in addition to claim proceedings, proceedings in cases arising from public legal relations, as well as special proceedings, are used.
Cases arising from public legal relations are determined by the presence of a dispute about the law, characterized by relations of power and subordination. Proceedings are initiated by filing an application or complaint. The prosecutor's application to the court is drawn up according to the rules provided for in Art. 247 Code of Civil Procedure of the Russian Federation.
For the majority of these cases, the period for their consideration has been significantly reduced (ten days for challenging decisions and actions (inaction) of state authorities, local governments, officials, state and municipal employees; from one day to two months for applications for the protection of citizens’ electoral rights) .
Cases arising from public legal relations are considered with the participation of the prosecutor if he initiated the initiation of proceedings in the case by filing an application. In cases of protection of electoral rights or the right to participate in a referendum and in applications to challenge regulatory legal acts, the mandatory participation of a prosecutor is provided (Part 3 of Article 269 and Part 2 of Article 252 of the Code of Civil Procedure of the Russian Federation).
The prosecutor’s authority to challenge regulatory legal acts is associated with the introduction of judicial control over the compliance of legal acts of representative and executive power, as well as officials.
The prosecutor, through special proceedings, also protects the rights and interests of citizens protected by law.
Special proceedings are a procedure for considering cases assigned to the jurisdiction of the court, which are characterized by the absence of a dispute about the law.
The list of cases considered by the court in special proceedings is given in Art. 262 Code of Civil Procedure of the Russian Federation. These are cases: about establishing facts of legal significance; about the adoption of a child; on declaring a citizen missing and declaring a citizen dead; on limiting the legal capacity of a citizen, on declaring a citizen incompetent, on limiting or depriving a minor aged 14 to 18 years of the right to independently manage their income; on declaring a minor fully capable (emancipation); on recognizing a movable thing as ownerless and recognizing the right of municipal ownership to an ownerless immovable thing; on the restoration of rights to lost bearer securities or order securities (call proceedings); on forced hospitalization of a citizen in a psychiatric hospital and forced psychiatric examination; on making corrections or changes to records of acts civil status; about completed notarial actions or refusal to perform them; on the restoration of lost judicial proceedings.
The participation of the prosecutor in the consideration of cases of special proceedings occurs either in the form of filing a statement in the interests of other persons, or in the form of joining an already begun case.
The Code of Civil Procedure of the Russian Federation provides for the possibility of reviewing court decisions and rulings that have not entered into legal force in two ways: appeal and cassation.
Proceedings in the appellate and cassation instances are initiated based on relevant complaints from persons participating in the case. The prosecutor participating in the case may bring an appeal or cassation presentation, respectively (Articles 320, 336 of the Code of Civil Procedure of the Russian Federation). The prosecutor has the right to bring a private presentation to the decision of the court of first instance.
If the prosecutor participated in the consideration of the case in the court of first instance, he has the right to take the initiative to review court decisions and rulings in the court of second instance. If the prosecutor did not participate in the court of first instance, then he has such authority.
District prosecutors and their deputies have the right to initiate appeal and cassation proceedings by bringing an appeal, cassation or private presentation on decisions and rulings made at first instance - on decisions or rulings of magistrates and district (city) courts; prosecutors of constituent entities of the Russian Federation, districts (navies) and their deputies - for decisions and rulings of courts of constituent entities of the Russian Federation and district (naval) military courts, respectively; Prosecutor General the Russian Federation and its deputies - on decisions of the Supreme Court of the Russian Federation. An assistant prosecutor, prosecutor of a department or department has the right to bring appeal, cassation or private representations only in those cases in which they participated (Article 36 of the Federal Law “On the Prosecutor’s Office of the Russian Federation”).
In an appeal, cassation and private presentation, the prosecutor must legally and factually confirm his position, setting out the reasons why he considers the court decision (ruling) illegal or unfounded. In the process of preparing submissions and when participating in the appellate or cassation instance, prosecutors take into account that the grounds for canceling court decisions, according to civil procedural law, are their groundlessness and illegality in the event of incorrect application or interpretation of the substantive law, as well as in cases of violation of the procedural law.
The submission is sent to the court with copies according to the number of persons participating in the case.
If, after sending the presentation, the prosecutor who submitted it is convinced of the inconsistency of the legal position, he has the right to withdraw this presentation before a decision or determination is made by the appellate instance (Article 326 of the Code of Civil Procedure of the Russian Federation) or before the start of the court hearing of the cassation instance (Article 345 of the Code of Civil Procedure of the Russian Federation).
When considering the prosecutor's presentation in a court of appeal or cassation, the prosecutor is the first presiding officer or member of the court after the report of the case. Then the parties' explanations are heard (Articles 174, 357 of the Code of Civil Procedure of the Russian Federation).
In his speech, the prosecutor must assess the legality and validity of the decision under review, taking into account the arguments of the presentation and complaints, and express his opinion on the need to change, cancel the decision or leave it unchanged, taking into account the powers of the appellate or cassation instance. Decrees of courts of general jurisdiction of the Russian Federation that have entered into illegal force may be reviewed in accordance with the procedure of judicial supervision, as well as based on newly discovered circumstances.
In accordance with Art. 376 of the Code of Civil Procedure of the Russian Federation, the prosecutor may make representations against court decisions within one year from the date of their entry into legal force.
The right to apply to a supervisory court with a request to review judicial acts that have entered into legal force, if a prosecutor participated in the consideration of the case, has the relevant officials of the prosecutor's office.
In the system of courts of general jurisdiction, the supervisory authorities are the presidiums of the courts of the constituent entities of the Russian Federation, the Judicial Collegium for Civil Cases of the Supreme Court of the Russian Federation and the Presidium of the Supreme Court of the Russian Federation. In connection with this, the right to bring supervisory submissions is available, respectively, to the prosecutors of the constituent entities of the Russian Federation and the military district (navy) - to the presidiums of the courts of the constituent entities of the Russian Federation and the district (naval) military court, the Prosecutor General of the Russian Federation and his deputies - to any court of the supervisory instance (Article 377 of the Civil Procedure Code RF). The district (city) prosecutor does not have such authority. However, he has the right, having studied the materials of the civil case and becoming convinced of the illegality or unfoundedness of the judicial acts passed on it, to appeal to a superior prosecutor with a proposal to bring a presentation, in the manner of supervision.
Civil procedural legislation recognizes as grounds for the annulment of judicial acts in the manner of supervision only their illegality in cases of incorrect application or interpretation of substantive law, as well as a significant violation of the norms of procedural law, which resulted in the issuance of an illegal judicial act (Article 387 of the Code of Civil Procedure of the Russian Federation).
If the prosecutor who brought the proposal is convinced of its inconsistency, then he can withdraw it. However, the prosecutor has the right to do this only before accepting the submission for consideration (Article 380 of the Code of Civil Procedure of the Russian Federation).
The prosecutor's submission is considered by the judge of the relevant court within one month in the court of a constituent entity of the Russian Federation and within two months in the Supreme Court of the Russian Federation (Articles 379, 381 of the Code of Civil Procedure of the Russian Federation). Based on the results of consideration of the submission, the judge makes a decision either to claim the civil case or to refuse such claim (Article 381 of the Code of Civil Procedure of the Russian Federation).
If the prosecutor is a person participating in the consideration of the case, the following persons take part in the court hearing:
. the prosecutor of a constituent entity of the Russian Federation, a military district (navy) or his deputy - in the presidium of the court of a constituent entity of the Russian Federation, a district (naval) military court;
. The Prosecutor General of the Russian Federation or his deputy - in the Presidium of the Supreme Court of the Russian Federation;
. an official of the prosecutor's office on behalf of the Prosecutor General of the Russian Federation - in the Judicial Collegium for Civil Cases and in the Military Collegium of the Supreme Court of the Russian Federation (Article 386 of the Code of Civil Procedure of the Russian Federation). The prosecutor who brought the presentation is the first to give an explanation after the speaker on the case speaks (Article 386 of the Code of Civil Procedure of the Russian Federation).
Based on the results of the consideration of the case, the supervisory court issues a ruling. It implements one of the powers of the supervisory authority provided for in Art. 390 Code of Civil Procedure of the Russian Federation:
1) leave the court decision of the court of the first second or supervisory instance unchanged, the prosecutor’s proposal to review the case in the manner of supervision - without satisfaction;
2) cancel the court decision of the court of the first, second or supervisory instance in whole or in part and send the case for a new trial;
3) cancel the court ruling of the first, second or supervisory instance in whole or in part and leave the application without consideration or terminate the proceedings;
4) leave in force one of the court decisions taken in the case;
5) cancel or change the court ruling of the first, second or supervisory instance and adopt a new court ruling, without transferring the case for a new trial, if an error was made in the application and interpretation of substantive law. Decisions and rulings that have entered into legal force may be revised due to newly discovered circumstances. The prosecutor's proposal to review the decision based on newly discovered circumstances is submitted to the court that made the decision.
The prosecutor must take into account that newly discovered circumstances are recognized as facts of objective reality in a civil case that remained unknown to the court and the applicant during the consideration of the case, which are essential for its correct resolution, reliably established in a special procedural way and indicating the unfairness of judicial acts that have entered into legal force.
In accordance with Art. 392 of the Code of Civil Procedure of the Russian Federation, such grounds are:
1) circumstances essential to the case that were not and could not be known to the applicant;
2) knowingly false testimony of a witness, knowingly false expert opinion, knowingly incorrect translation, falsification of evidence established by a court verdict that has entered into legal force, which resulted in the adoption of an illegal or unfounded decision, court ruling;
3) crimes of the parties, other persons participating in the case, their representatives, crimes of judges committed during the consideration and resolution of this case established by a court verdict that has entered into legal force;
4) cancellation of the decision, sentence or ruling of the court or resolution of another state body or local government body that served as the basis for the decision or ruling of the court. For example, the sentence was overturned and the convicted person was acquitted. However, on the basis of the overturned verdict, material damages have already been recovered from the citizen. The deadline for the prosecutor to submit a motion to review the decision is three months. The prosecutor can make a representation only from the moment specified by law. So, if the prosecutor asks to review the court decision due to the presence of circumstances that are significant for the case - from the day they are opened; in case of criminal actions of participants in the process or falsification of evidence established by a court verdict, which led to the adoption of an unjust decision - from the day the verdict in the criminal case enters into legal force; in case of cancellation of the corresponding judicial or other act that served as the basis for the decision - from the date of entry into legal force of the decision by which this act was canceled or another resolution of a state body or local government was adopted, opposite in content to the resolution on which it was based revised judicial act (Article 395 of the Code of Civil Procedure of the Russian Federation).

INTRODUCTION

1 THEORETICAL BASIS FOR THE PARTICIPATION OF THE PROSECUTOR IN THE CIVIL PROCEDURE

1.1 history of the emergence of the prosecutor’s office and its relationship with the judicial system

1.2 status of the prosecutor when considering civil cases by courts

1.3 features of the development of the institution of the prosecutor’s office at the present stage

2 PRACTICE OF PARTICIPATION OF THE PROSECUTOR IN CIVIL PROCEEDINGS

CONCLUSION

LIST OF REFERENCES USED

INTRODUCTION

The entry into force on February 1, 2003 of the new Civil Procedure Code of the Russian Federation, which changed the powers of the prosecutor in civil proceedings, requires the prosecutor's office to take additional specific measures to ensure the participation of prosecutors in civil proceedings to solve the problems of strengthening the rule of law, protecting violated or disputed rights, freedoms and legitimate interests of citizens or interests of the Russian Federation, constituent entities of the Russian Federation, municipalities, taking into account the requirements of new procedural legislation. (Order of the General Russian Prosecutor's Office dated December 2, 2003 N 51 “On ensuring the participation of prosecutors in civil proceedings”)

Relevance The chosen topic of work is determined by the role of the prosecutor in court, in particular in civil proceedings, in the forms and functions of the prosecutor’s implementation of his law enforcement powers at the present stage. This problem is not only for Russia, but also for the countries of the former Soviet Union, and now the CIS. After all, the basis of the modern legal framework of these countries was the legislation of the USSR. After independence, legal development followed approximately similar paths through the adoption of new legislation. This is evidenced by the constantly adjusted legal framework. Discussions about limiting or, conversely, strengthening the role of the prosecutor both in court and in general supervision are not something new in the history of the prosecutor's office, which is characterized by the search for optimal forms of exercising powers. These discussions are useful in that they provide an opportunity to clarify society’s attitude towards the institution of the prosecutor’s office.

Object of study is the status of the prosecutor in the consideration of civil cases by the courts: both in the form of initiating a civil case in defense of the rights and legally protected interests of other persons, as well as in the form of entering into the process to give a legal opinion on the case at any stage, if this is required to protect the state or public interests, or the rights and interests of citizens, and filing appeals, cassation, and supervisory submissions.

Subject of research— legal relations between the institution of the prosecutor’s office and civil proceedings. The main thing in the activities of the prosecutor's office during the years of its creation and then was the protection of the interests of the state. And only then – protection of the legitimate rights and interests of citizens. Now the rights and interests of people come first, and then the state. The controversy that has erupted over the issue of the active participation of the prosecutor in civil proceedings confirms the desire of a significant part of legal practitioners, especially lawyers and judges, to exclude the prosecutor from the number of persons participating in civil proceedings or to deprive him of complete supervisory powers.

After the adoption and entry into force of the Law “On the Status of Judges in the Russian Federation” in June 1992, strengthening guarantees of the independence of judges is perceived by judges and some scientists as an absolute. This was reflected in the Law “On the Prosecutor’s Office of the Russian Federation,” which excluded supervision of judicial activities.

Basic purpose This thesis was an analysis of the legal basis for the activities of the prosecutor's office in civil court through the study of the historical path of formation of the prosecutor's office, as well as the establishment of priority areas and determination of the procedural position of the prosecutor as a representative of the interests of the state, citizens and legal entities.

To achieve the set goals, the history of the formation of the Russian prosecutor's office, the development of the modern Kazakh prosecutor's office, its functions, from its creation to the present, have been studied and analyzed.

On this basis it is decided tasks:

— generalization and analysis of legislation regulating the participation of the prosecutor in civil proceedings from the time of the formation of the prosecutor’s office to the present day;

— designation of the problem of the prosecutor’s office, in terms of the participation of the prosecutor in civil proceedings, in Russia and the Republic of Kazakhstan.

— identifying ways to improve the efficiency of the law enforcement functions of the prosecutor’s office in general and in civil proceedings in particular.

This work is a study that examines the issue of the participation of the prosecutor in the consideration of civil cases by the courts. All work on completing the diploma is based on a comprehensive analysis and comparison of both theoretical and practical material, as a result of which the structure of the diploma project was determined.

The introduction defines the relevance of the work, the object and subject of the study, its structure and range of tasks, the solution of which makes it possible to draw certain conclusions.

In order to more fully reveal the topic of the work - the participation of the prosecutor in the consideration of civil cases by the courts, the first part of the work is devoted to the analysis of historical material about the reasons for the emergence, functions and purpose of the prosecutor's office to the present day. Their interaction with legal proceedings, in particular with the civil court. Determination of the status of the prosecutor in civil proceedings, analysis of the legislation of the Russian Federation and the Republic of Kazakhstan regulating this question. The problems of the prosecutor's office related to changes in legislation are considered.

The second section allows analysis using an example judicial practice Russian Federation and the Republic of Kazakhstan, consider the categories of civil cases in which the prosecutor's office is involved.

In conclusion, an assessment of all the material is given and conclusions are drawn.

In the process of preparing this work, the works of such legal scholars as: V.N. Argunov, V.I. Baskov, V.G. Bessarabov, R.E. Ghukasyan, V.Z. Gushchin, A.F. Kozlov, V.S. Tadevosyan, D.M. Chechot, M.S. Shakaryan, and others.

The following were used as an information base for the Russian Federation:

· Constitution of the Russian Federation,

laws of the Russian Federation,

· Civil procedural code of the Russian Federation,

· acts of the President and Government of the Russian Federation,

· acts of the General Prosecutor's Office of the Russian Federation,

· information letter of the General Prosecutor's Office of the Russian Federation dated January 27, 2003 N 8-15-2003 “On some issues of the participation of the prosecutor in civil proceedings related to the adoption and enforcement of the Civil Procedure Code of the Russian Federation”

· materials of judicial practice in civil cases of the Russian Federation,

For the Republic of Kazakhstan:

· Constitution of the Republic of Kazakhstan,

laws of the Republic of Kazakhstan,

· Civil procedural code of the Republic of Kazakhstan,

· acts of the General Prosecutor's Office of the Republic of Kazakhstan,

· materials of judicial practice in civil cases of the Republic of Kazakhstan.

The practice of prosecutorial supervision in civil cases was studied. Russian Federation and the Republic of Kazakhstan over the past three years. These are information letters, bulletins, cassation and supervisory protests, prosecutors' claims, court rulings and decisions, etc.

THEORITICAL JUSTIFICATION OF THE PARTICIPATION OF THE PROSECUTOR IN THE CIVIL PROCEDURE.

1.1. The history of the emergence of the prosecutor's office and its relationship with the judicial system.

A historical study of the creation, formation of a government body and its activities helps to better understand the historical purpose of this body, its place in the system of other government agencies, as well as the need to perform the functions assigned to it. In addition, by studying the history of a particular government body, we will be able in modern conditions to take legislative and organizational measures aimed at increasing the efficiency of this government body.

The above fully applies to the prosecutor's office. Their activities have never been assessed unambiguously in any state. Various concepts of prosecutorial supervision were developed, many of whose provisions were not applied in practice, and vice versa, practice put forward certain requirements for the prosecutor's office that were not enshrined in the laws on the prosecutor's office and scientific justification in the theory of prosecutorial supervision.

The prosecutor's office in Russia from the time of Peter I until the revolution of 1917 established itself as an effective and important, despite all the shortcomings, element of the state mechanism. In its development, the Russian prosecutor's office went through three stages (periods), which correspond to its qualitative Various types: prosecutor's office from Peter's times to the reform of 1864, post-reform prosecutor's office, Soviet prosecutor's office and prosecutor's office after the collapse of the USSR.

1. prerequisites for occurrence.

The words: “prosecutor”, “prosecutor’s office” have a Latin root – “procuro”, which means: “I take care of”, “manage”.

Historically, the judicial power arose much earlier than the prosecutor's office. IN Ancient Greece and in ancient Rome, the victim of a crime or civil tort himself collected evidence and supported the accusation in court or invited speakers to do this. In the later period of Roman history (I-IV centuries AD), criminal prosecution was carried out by officials of the emperor.

In the government structure of ancient civilizations there was no such figure as a prosecutor, but already in Ancient Rome there was the position of a curator, who could be both a trusted representative of a Roman citizen in judicial and commercial matters, and a governor of a province, with concentration in his hands of all power, including judicial

The functions inherent in the prosecutor's office: criminal prosecution, supervision of the implementation of laws arose with the advent of law, otherwise the laws would have been purely formal in nature if there had been no mechanism for monitoring their implementation. Initially, such functions were carried out by holders of supreme power: king, tsar, prince, etc. and their governors.

In the secular law book “Russian Truth of the Yaroslavichs” of 1054, the bodies administering justice include the prince, who owned the judicial power. During the formation of the Russian centralized state (XIV-XV centuries) in the Moscow state there were three main judicial systems: state, church and patrimonial. The state court in the center carried out Grand Duke, Boyar Duma, good boyars. Since the 15th century The central judicial authorities considered complaints against the verdicts of local courts or their reports.

Law code 1550 significantly strengthens the role of the central judicial bodies, their control over lower-level bodies, and speaks of the judicial responsibility of governors and volosts for bribery and red tape, the establishment of sanctions for violation of the procedure for judicial review.

Second half of the 17th century - under Tsar Alexei Mikhailovich, the Order of Secret Affairs was created, carrying out not only the functions of political supervision, but also control over the activities of the state apparatus, and enjoying the right to review and re-solve cases. The activities of this institution were strictly centralized and confined to the autocrat.

2. pre-reform prosecutor's office.

1711 – Peter I established the position of “fiscal”, obliged “to secretly supervise all matters and inspect about unfair trials, as well as in collecting the treasury and other things.” The Fiscal Service was a purely secret service, so it was very unpopular in public opinion, had little influence on the creation of an environment of law and order. In addition, fiscal officials of all ranks did not receive material support from the treasury, they existed at the expense of “their own food,” and this led to extortions, bribery and other abuses. In the same year, by decree of Peter I, the Senate was established, it dealt with all the most important issues governing the country “during our (the king’s) absences.” The Senate included the Execution Chamber, which was essentially a judicial department. Its main task was to consider reports from fiscal officials and petitions against illegal actions and decisions of local and central government bodies and courts. In accordance with the law, the Senate was the highest court, which considered, based on complaints from the parties, a case already decided in a lower court. In practice, it also accepted cases for consideration as a court of first instance.

In parallel with the development of the fiscal service, there was a search for more advanced forms of control activities, primarily in the direction of increasing its publicity. One of the directions along this path was the establishment in 1715 of the post of auditor general, according to historians, the direct predecessor of the prosecutor general.

Over time, Peter I became convinced of the ineffectiveness of the fiscal service as a body for protecting the rule of law in the empire, especially since dissatisfaction with the activities of the fiscals grew in all layers of Russian society, therefore this service was later abolished.

The prosecutor's office appeared only in the 13th-14th centuries in France in connection with the struggle of royal power against the willfulness of feudal lords and separatism (Ordinance of King Philip IV of 1302). Until this time, the relevant officials were called “the king’s men” - gens du roi1. The French prosecutor's office arose as a purely accusatory, punitive body, adapted to carry out the will of the king and give opinions in courts. Around the same period, the prosecutor's office was established in Germany and was entrusted with the investigation of crimes. IN XVI-XVII centuries The prosecutor's office already operates in many countries - Italy, the Netherlands, etc.

Peter I turned to the experience of France, who, when creating it in 1722, Russian prosecutor's office, borrowed from France the name of the highest official called upon to oversee compliance with the law - “prosecutor general.” The positions of prosecutor general and chief prosecutors were established by Peter I on January 12, 1722. (since 1996 - “Day of the Prosecutor’s Office of the Russian Federation”). The Decree “On the position of the Prosecutor General” determined that the Prosecutor General was to be in the Senate and supervise it. The Prosecutor General had the right of legislative initiative and could raise the issue of eliminating gaps in legislation with the Senate and then submit the bill to the Emperor for approval. The position of prosecutor general was held by P.I. Yaguzhinsky. Unlike the fiscal service, the prosecutor's office was called upon to monitor compliance with the laws publicly.

Gradually, the Prosecutor General began to occupy a key position in government administration. All subordinate prosecutors acted on behalf of the Prosecutor General, under his direct supervision and patronage. They received instructions from him; they turned to him with their “denunciations” and protests. How highly Peter I valued the prosecutor’s office he created is evidenced by the following norm of his decree: “The general and chief prosecutors are not subject to anyone’s court except ours.”

According to the plan of Peter I, prosecutorial supervision was formed as an institution of control over the activities of the state apparatus and, first of all, over the Senate, which, according to the Decree “On the Position of the Senate” of April 27, 1722, became a legislative advisory and supreme body of subordinate executive power. When creating the prosecutor's office, the peculiarities of the state structure, economic situation, and social relations that developed in the Russian Empire were taken into account.

After the death of Peter I, the prosecutor's office, as a state body, did not worry better times. Peter I needed the prosecutor general to supervise the nobles, and in conditions when the monarch was at the mercy of the nobles, his position was unnecessary.” Her role became so insignificant that in some years the post of prosecutor general remained unoccupied, and the prosecutor's office was actually abolished.

In 1731 Anna Ioannovna, by personal decree announced to the Senate, creates the Cabinet of Ministers. Having received some powers of supreme power, the Cabinet of Ministers begins to take the place of the Supreme Privy Council in the system of government bodies. The terms of reference of the Cabinet were: supreme administration and supervision, foreign and military affairs, and the highest court. The prosecutor's office was abolished for the second time during the regency of Anna Leopoldovna in 1740-41.

The reign of Catherine II elevated the prosecutor general above other officials and state institutions. Addressing the Prosecutor General, Catherine II emphasized that he must use her “perfect power of attorney.” The reform carried out by Catherine II divided the Senate into 6 departments. All departments, except the department of state internal and political affairs, were headed by chief prosecutors, who were subordinate to the prosecutor general.

A hierarchically structured system of the prosecutor's office has been formed as an authorized supervisory body. Positions held by: A.A. Vyazemsky, A.N. Samoilov, A.B. Kurakin…. Not content with creating complex system estate courts (city orphan's court, courts of upper and lower justice, noble, etc.), Catherine II added another all-estate body, combining the functions of a court for minor cases, an arbitration court and even the prosecutor's office - a court of conscience.

During the reign of Alexander I, prosecutorial supervision received its further development, and starting from 1802. The Prosecutor General became at the same time the Minister of Justice. The law stated: “neither the courts nor the presiding judges are included in discussions of the actions of persons of prosecutorial supervision. Judicial, accusatory or action activities constituted only one of the complements of the functions of supervision.” From 1801 to 1803 The post of Prosecutor General and Minister of Justice was held by Gavriil Romanovich Derzhavin.

3. post-reform prosecutor's office.

During the years of judicial reform in 1864. In Russia, the Western European version of the organization of the prosecutor's office was adopted, its supervisory functions were sharply limited, and it turned mainly into a criminal prosecution body.

Charter 1864 provides for civil proceedings. What the prosecutor gives a mandatory conclusion:

a) on matters of government administration, zemstvo institutions, urban and rural communities;

b) in cases of persons under the age of majority, missing persons, deaf-mute and insane persons;

c) on issues of jurisdiction, disputes between judicial and administrative bodies, and the removal of judges;

d) in disputes about forgery of documents and in cases where circumstances are discovered in a civil case that are subject to consideration by a criminal court;

e) on requests for the issuance of a certificate of poverty law 9 as a basis for exemption from legal costs);

f) on marriage matters and on the legality of birth; in marriage cases, the role of the responding party in the event of its absence was performed by the prosecutor, who was obliged to collect and present to the court evidence to refute the claim and who had all the rights of a litigant.

Legislation of the 19th century How foreign countries, and Russia, did not provide prosecutors with the right to bring claims in defense of the interests of the state and society, since there was no commonality between civil circulation and the economic and social functions of the state. The civil process did not allow public beginnings.

According to Article 124-136 of the Charter on the establishment of judicial institutions on November 20, 1864. Prosecutor's supervision was carried out by chief prosecutors, prosecutors, and fellow prosecutors under the supreme supervision of the Minister of Justice as Prosecutor General. Each district court and each judicial chamber had a special prosecutor and a certain number of fellow prosecutors. Some of the prosecutor’s comrades were at the district court itself, and others were in other cities of this judicial district.

The essence of the reorganization of the prosecutor's office in accordance with the basic principles of the judicial reform of 1864 was to limit prosecutorial supervision exclusively to the judicial area, to assign to the prosecutor the functions of maintaining the state prosecution in court and to strengthen supervision over the inquiry and investigation, which actually turned prosecutors into heads of the preliminary investigation. In connection with this, the system of prosecutorial supervision bodies also changed: the provincial prosecutor's office had to give way to prosecutor's offices created in judicial districts. In 60-90 XIX century There are two branches of prosecutorial supervision: provincial and “judicial prosecutor’s office.”

Ensuring the independence of prosecutors from local influences was significantly facilitated by the established procedure for their appointment and dismissal from their positions, by rescript of the Emperor.

Judicial system of Russia

4. Soviet prosecutor's office (1922-1991)

After October revolution the prosecutor's office was liquidated. Decree on the Court No. 1 of November 24, 1917 noted: “Abolish the previously existing institutions of judicial investigators, prosecutorial supervision, as well as the institutions of juries and private

advocacy." All “immaculate citizens of both sexes enjoying civil rights” could now act as prosecutors. Supervision and control over the rule of law were the functions of many bodies and institutions, starting with the All-Russian Central Executive Committee and its presidium and ending with the provincial and district departments of justice.

In 1921 attempts were made to create central bodies for managing the judicial system, because the latter, in the years civil war, did not have a single leadership center; supervisory and cassation functions were decentralized. One of the attempts to overcome these shortcomings can be considered the development and approval by the All-Russian Central Executive Committee and the Council of People's Commissars of the RSFSR on March 10, 1921. Regulations on the Supreme Judicial Control. Attempts to establish the Supreme (or Supreme) judicial control were made in 1918-20. However, then everything came down only to the proclamation of these bodies, but in reality they were not created. According to the Regulations on the Supreme Judicial Control of March 10, 1921, the People's Commissariat of Justice of the RSFSR was entrusted with:

- general supervision over the activities of all judicial bodies of the RSFSR and their provision of guidelines and explanations on current Soviet law;

— consideration of sentences that have entered into legal force and recognition of them as unjust, if there are appropriate grounds;

— resolving the issue of resuming court cases based on newly discovered circumstances.

The Supreme Judicial Control had the right to cancel sentences that had entered into legal force and refer criminal cases for a new trial to the relevant judicial authorities.

People's Commissariat of Justice, i.e. body government controlled, was granted the right to directly influence the consideration of specific criminal and other cases by the courts.

The administrative body received the right to overturn court sentences and decisions. This situation was contrary to the principles of Soviet justice at that time. It couldn't be maintained long time, because from the point of view of justice of that time, court sentences could only be overturned by a judicial body that was independent and subject only to the law. The People's Commissariat could not be such a body. Granting the People's Commissariat of Justice of the RSFSR the rights of supreme judicial control did not turn it into a higher judicial institution. It remained an administrative body. The introduction of such judicial control was only a temporary measure to improve the management of judicial activities.

The justice authorities actually carried out in 1917-1921. supervision over the legality of actions of government bodies, public organizations and officials. The main direction of local justice authorities in the field of supervision over the rule of law was determined by the executive committees. Much depended on the extent to which the judicial authorities were authoritative for the executive committees. In addition, the local justice authorities themselves, being directly subordinate to local authorities, were strongly influenced by parochial traditions and sentiments.

There was a need to create a legal oversight body in the justice system that would not depend on local influences. The prosecutor's office should have become such a body.

May 28, 1922 the principles of the organization and activities of the Soviet prosecutor's office were developed and enshrined in the Regulations on Prosecutor's Supervision. According to the Regulations, the main tasks of the prosecutor's office were

Carrying out general supervision over the legality of the actions of all government bodies, economic institutions, public and private organizations and individuals by initiating criminal prosecution against those responsible and challenging decisions that are contrary to the law;

— monitoring the activities of investigative bodies of inquiry in the field of solving crimes, as well as the activities of the State Political Administration bodies;

— maintaining charges in court;

Monitoring the proper maintenance of prisoners in custody.

Until the beginning of the 30s. there was a tendency to move away from the democratic trends outlined by the reform of the judiciary; the desire of the command-administrative system to bring the courts closer to executive bodies, the re-establishment of emergency bodies of repression, and from 1929, extrajudicial bodies began to work - “troikas”, which later moved to the NKVD, largely replacing the courts.

Quite a lot of effort was made to abolish extrajudicial bodies of repression and give the Supreme Court of the USSR the right to review their decisions made in the 30-40s and early 50s, based on the protests of the Prosecutor General of the USSR.

Since 1933 The prosecutor's office acted as an independent state legal structure, independent of other departments. The functions and powers of this supervisory body are gradually being expanded, and the control of this supervisory body of the legislative branch of government is being strengthened, which is reflected in normative legal acts in 1955 and 1979

One of the stages in the development of the prosecutor's office was the approval on May 24, 1995. Provisions on prosecutorial supervision in the USSR. It defined the tasks, powers of prosecutors, means prosecutorial response on detected violations of laws in criminal and civil proceedings. Many of the provisions of the Regulations were subsequently included in the Fundamentals of criminal, civil proceedings and correctional labor legislation. November 30, 1979 The law on the USSR Prosecutor's Office was adopted.

5. prosecutor's office after the collapse of the USSR

Since 1991, after the collapse of the USSR, the working conditions of the Russian prosecutor’s office have changed dramatically.” Economic reforms were carried out without legal support. At this time, the concept of judicial reform was adopted, in which, in particular, along with the right steps to reform the prosecutor’s office, the need to transform it from a multifunctional body only into an instrument of criminal prosecution was theoretically justified. Proponents of the concept of limiting the functions of the prosecutor's office took Western models as a model. Moreover, these attempts were crowned with success to a certain extent. In legislation, prosecutorial supervision began to be called not “highest”, but simply “supervision,” which terminologically equated it with the supervisory authorities of the executive branch. In the Constitution of the Russian Federation of 1993, unlike the previously valid one, there is no chapter on the prosecutor's office: Article 129 of the current Constitution, dedicated to the prosecutor's office, is in Chapter. 7 "Judicial power", although the prosecutor's office is not part of the judicial system. The Prosecutor General of the Russian Federation was not included in the constitutional list of subjects of legislative initiative and was deprived of the right to appeal to the Constitutional Court of the Russian Federation on issues of compliance of legal acts with the Constitution. If such a tendency to limit the functions of the prosecutor's office prevailed when further amendments and additions to the Law on the Prosecutor's Office were adopted, then the role of prosecutorial supervision would be reduced to a minimum. But introduced in 1995, 1999 and later the changes were so extensive and meaningful that they made it possible to maintain a strong prosecutor’s office in Russia.

The current Law on the Prosecutor's Office takes a new approach to the organization of prosecutorial supervision. Although ensuring the rule of law, unity and strengthening the rule of law remained in the foreground, the “core” prosecutorial activities became the protection of human and civil rights and freedoms. Of course, such an important function as the protection of the interests of society and the state protected by law by means of prosecutorial supervision has also been preserved.

6. development of the judicial system and prosecutor’s office of the national outskirts of Russia and on the territory of Kazakhstan. Prosecutor's Office of the Union Republics of the USSR.

The provincial reform, begun by the Decree of December 18, 1707, provided for the division of the country into eight provinces; later there were 11 of them. The head of the province, the governor, also carried out police and judicial functions. Landrats were established under the governors. Together with them, they collectively resolved all matters. This stage in the evolution of the judiciary is characterized by the first attempt to separate the court from the administration by establishing special officials (landrichters) to administer justice. However, local judiciaries remain largely subordinate to the administration, i.e. controlled by the governor.

The judicial system of the Russian Empire did not have unity. In addition to the General All-Estate Courts, estate, departmental, and special courts were preserved. In certain territories enjoying “privileges,” as well as the so-called national outskirts newly annexed to Russia, special local courts and even special local systems continued to operate.

The government of Catherine II created a new court by Decree of November 7, 1775. according to the Institution for the management of provinces: the lowest instance is the district court (consisted of a district judge and two assessors); and the appellate and revision instances for the former are the upper zemstvo courts (usually one per province. The latter were divided into two departments: criminal and civil.

The general imperial system was supplemented by systems that existed in “non-Russian” regions: Ukraine, the Baltic states, etc. On the territory of Kazakhstan, the khan represented the state before the outside world. The Kazakh khan did not have any administrative apparatus, except for the so-called Horde biy, who played the role of vizier, assistant to the khan. Therefore, he could exercise his power in the clans subject to the sultans, in the clans of biys and auls only through the feudal lords themselves. To resolve questions about new laws, the most important court cases from the 17th century The khans convened biys from the most influential clans of the zhuzes. The Council of Biys was a permanent advisory body under the khan, which testified to the great influence of the ancestors on the khan.

Judicial functions were carried out by khans, sultans and Biys. Khans and sultans dealt with the most important criminal and civil cases: inter-tribal and inter-aul feuds and disputes, murders of representatives of the highest feudal nobility, disputes between sultans, etc. Major cases were considered with the participation of the most notable biys. The court of biys was the main judicial authority. But not every biy - the ancestor could simultaneously be a biy - a judge. To do this, it was necessary to have a good knowledge of Kazakh adat (customary law) and establish oneself as an objective judge. Handle civil and criminal cases, i.e. Any person with authority, power and knowledge of customs could legally perform the functions of a judge (biy). More often these were influential family rulers or persons famous for their skillful resolution of court cases. The title of biy was not hereditary; they were not officially elected, but were nominated during the very practice of analyzing offenses. However, a person bearing the title of biy. Must actually have the power and authority to not only make decisions, but also ensure the implementation of court decisions. Therefore, the biy must combine the functions of a founder, a judge, and local administrative authority.

After the entry of two Kazakh zhuzes into Russia, the highest administration and court were concentrated in Orenburg in the so-called border court, which consisted of tsarist officials and representatives of the Kazakh nobility. The lower authorities in relation to him were reprisals from the clan elders.

In the first half of the 19th century. On the territory of Kazakhstan, which completely became part of the Empire, a special judicial-administrative system was introduced. Charter of 1822 The competence of the biys' court is limited: consideration of cases on charges of treason, murder, robbery and some other especially dangerous crimes was transferred to the district orders - the highest authorities of the district, i.e. administrative part of the zhuz territory. The district order consisted of a senior sultan, elected by the sultans for a period of three years, two Russian assessors - officials appointed Russian government, and two assessors elected by sultans, biys and elders. The court of biys remained the lowest authority. The decisions of this court were based on customary law. The trial involved two mediators chosen by both parties. Simultaneously with the creation of new judicial bodies, the Prosecutor's Office, which was one of the institutions of the judicial system of the Empire, was reorganized by the Provincial Institutions. Prosecutors were established under the provincial government, the Upper Zemstvo Court, the Provincial Magistrate and the Upper Justice. Prosecutors at local courts were subordinate to the prosecutor under the provincial government, the provincial prosecutor. The provincial prosecutor was under dual subordination: the prosecutor general and the governor general (or governor). The provincial institutions created a fairly harmonious system of prosecutors, based on a strict hierarchy.

The prosecutors had attorneys in criminal cases who assisted them in supervising the courts. In the estate provincial courts there were also attorneys for criminal and government cases. In the counties, county attorneys were established who supervised the county administration and the court. The solicitors were assistant prosecutors and, along with them, formed a panel.

The word attorney in the Moscow state of the 17th century. It did not mean a position, but a rank - one of the five established for noble feudal lords. The rank of solicitor came from the former court title of the same name, which had the person in charge of the “cooking” - the sovereign’s clothes. This title was usually awarded for civil merit. Solicitor is the last of the five ranks, but as an addition to his salary he was allocated an estate equal to the fourth rank.

Table of ranks 1722 In Russia, a different, civil rank was created, where the rank already corresponded to the position. The report card did not contain such a rank as attorney. Peter I used this word in legislation in the meaning of “caring” - “like our eye and attorney in state affairs.”

The institution on the provinces determined the competence of the provincial prosecutor, provincial solicitors: “they watch and are vigilant about maintaining everywhere every order determined by the laws, and the production and administration of the cases themselves. They preserve the integrity of the power, institutions and interests of the Imperial Majesty, ensure that no one collects prohibited taxes from the people, and have the duty to destroy malicious bribes everywhere” (PSZ-1. Vol. 4,20 No. 14392, Art. 404). There were provincial and district attorneys who were defenders and intercessors in cases of minors, societies, monasteries, churches, and bishops' houses. They acted by proxy.

In addition to supervisory functions, prosecutors received the right to impose fines for disorder in court, and they could turn part of this income to their own benefit, which was supposed to stimulate their law enforcement activities and increase vigilance in observing the law. In practice, prosecutorial supervision partially merged with the management of the local apparatus. The subordination of the prosecutor's office to the head of the provincial administration in the person of the governor did not allow it to play a large role locally and, to a certain extent, turned it into a screen of “legality” that covered up the arbitrariness of local authorities.

Assessing the activities of prosecutors at a later time, in mid-19th century, A.F. Koni wrote that “the provincial prosecutor and district attorneys were a living reminder of the law and, in many cases, its obligatory interpreters... The history of the Ministry of Justice from the thirties to the sixties presents many examples of the energetic struggle of provincial prosecutors against local abuses” .

The powers of the prosecutor of the Supreme Court were specified in the Regulations on the Supreme Court of the USSR (decree of the Central Executive Committee of the USSR of November 23, 1925):

a) propose for consideration of the Presidium of the Central Election Commission and the Supreme Court of the USSR issues within the competence of the latter,

b) protest the decisions of the Supreme Court of the USSR,

d) claim decisions and sentences of the supreme courts of the union republics,

e) check them by way of supervision and submit them for consideration by the Supreme Court of the USSR.

The Fundamentals of the Judicial System of the USSR and Union Republics, adopted on October 29, 1924, defined the competence of prosecutors of union and autonomous republics. Here the Regulations on Prosecutor's Supervision of 1922 were reproduced (general supervision, supervision of investigations, maintaining prosecution in courts, supervision of places of deprivation of liberty) with the addition that the prosecutor's office protects the interests of workers in civil cases.

An important milestone on the path to reforming the judicial system was the adoption on December 28, 1958. – Fundamentals of legislation on the judicial system of the USSR, union and autonomous republics. In essence, it was a moderate, although not entirely consistent, judicial reform. The updated legislation preserved systemic vices and sinned

ideological, ignored democratic principles process (adversarial, presumption of innocence, etc.), could not be an effective means of protecting human rights and freedoms.

The 1977 Constitution of the USSR contributed to strengthening the centralization and unity of prosecutorial supervision. in it, the prosecutor's office was given an independent chapter, which revealed the fundamental principles of the organization and activities of the prosecutor's office. The Constitution entrusted the prosecutor's office with the highest supervision over the accurate and uniform implementation of laws throughout the country. The highest supervision of the prosecutor's office was carried out by prosecutors on behalf of the Supreme Soviet of the USSR on the basis of the principles of legality, centralization and independence of prosecutors from various kinds of local influences. The Constitution enshrined the right of the Prosecutor General of the USSR to legislative initiative.

Events of August 1991 demanded that the prosecutor's offices of the former union republics quickly navigate the current situation, abandon obsolete forms of work, search and use effective methods prosecutorial supervision.

The changes taking place in the legislation of Kazakhstan have highlighted the person as the highest value of society, and the rights of citizens to judicial protection have been expanded. Legal protection of the individual has become the main content of the activities of the prosecutor's office of the republic.

December 6, 1991 educated one system prosecutor's office, subordinate to the Prosecutor General of the Kazakh SSR.

The legal reform program in the Republic of Kazakhstan was approved in 1994. This document defines the basic principles of reforming the prosecutor's office. They were later enshrined in the 1995 Constitution. Clause 2 of Article 83, which proclaims the main provisions on the prosecutor’s office as a single centralized independent system, and the Decree of the President of the Republic of Kazakhstan “On the Prosecutor’s Office of the Republic of Kazakhstan”.

1.2 the status of the prosecutor when considering civil cases by the courts.

Civil process is an activity to implement the judicial form of protecting the rights of interests of citizens and organizations. Judicial order dispute resolution is generally recognized, and everyone can seek protection in court. The role of the prosecutor in civil proceedings is specific.

The purpose of the prosecutor's participation in civil proceedings. The prosecutor contributes to the implementation of the goals of justice and the fulfillment of the tasks facing the court, in strict adherence to the principle of the independence of judges and their subordination only to the law, since the purpose of the participation of the prosecutor in civil proceedings is to strengthen the rule of law, protect the violated rights, freedoms and interests of citizens protected by law; an indefinite circle of persons, the interests of the Russian Federation, its subjects, municipalities.

In civil proceedings, the protection of a violated or contested subjective right is carried out. The essence of the principle of publicity lies in the obligation of the court, on behalf of the state, to give a public response to the requirements that are presented to it regarding the presence or absence of the subjective right of the plaintiff in legal relations with the defendant in civil proceedings. These same public principles in civil proceedings find their expression in the norms establishing the participation of the prosecutor in civil proceedings.

The legal basis is:

· Constitution of the Russian Federation

· International treaties of the Russian Federation

· Federal Law “On the Prosecutor's Office of the Russian Federation”

· Other applicable laws and regulations

· Order of the Prosecutor General dated December 2, 2003. No. 51 “On ensuring the participation of prosecutors in civil proceedings”

The legal basis for the prosecutor's participation in civil proceedings are legal norms that specify the tasks of the prosecutor in the process:

· prevention of offenses, violations of substantive or procedural law;

· elimination of committed violations of the law;

· making a lawful and substantiated decision, ruling and resolution in each civil case;

· ensuring the rights and legitimate interests of participants in civil proceedings;

· assisting the court in the administration of justice.

Changes that have occurred over last years in the legislation on the prosecutor's office, clearly indicate a change in the entire concept of the prosecutor's office, as well as a shift in the emphasis of its activities towards the protection of the rights and freedoms of citizens. At the same time, these transformations indicate a change, first of all, in the legal status of the prosecutor’s office, as well as the focus of certain types of its activities.

In Russian, status is understood as the current state or legal status. (Ozhegov S.I., Shvedova N.Yu. “ Dictionary Russian language." M., 2001. P.764.)

In the theory of law, legal status is understood as a set of initial inalienable rights and obligations of a person, recognized by the constitution or laws, as well as the powers of government bodies and officials directly assigned to certain subjects of law. (Mitskevich A.B. “ General theory rights." Ed. A.C. Pigolkina. M., 1998. P. 241.) This allows us to consider the categories of “legal status” and “legal status” as identical. N.I. Matuzov traditionally considers legal status in relation to the individual, and understands by it “the legally established position of the individual in society.” Meanwhile, the content of the legal status, highlighted in the theory of law, allows us to talk about it in relation to all participants in legal relations, bearers of rights and obligations who are subjects of law: citizens, organizations, government bodies, etc.

Being a public authority, as well as a subject of legal relations, the prosecutor's office also has a legal status, the content of which consists of the legally established rights and obligations of this body. The rights and responsibilities of the prosecutor’s office, like other government bodies, are designated by the category “competence,” which is usually understood as the totality of powers of any body or official in the field of its activities. Based this definition, the competence of the prosecutor's office consists of the totality of its powers, as well as the rights and responsibilities granted to officials of the prosecutor's office implementing each of its activities.

The general legal status of the prosecutor's office is associated, first of all, with its place in the state legal mechanism. As is known, the provisions on the prosecutor's office are enshrined in Art. 129 of the Constitution of the Russian Federation and is located in the chapter “Judicial Power”, although in fact the prosecutor’s office is not part of the judicial system. The prosecutor's office is not an element of either the legislative, executive or judicial powers. The legal nature of the prosecutor's participation in civil proceedings is determined by the essence of the institution of the prosecutor's office, which carries out a law enforcement function, and the nature of the state-legal relations in which the prosecutor is with the state.

By entering into the process, the prosecutor becomes a participant and is subject to the rules that regulate the procedural activities of all subjects. But, first of all, the prosecutor is a representative of the state who performs a human rights function and in all cases monitors compliance with the law.

Grounds for the participation of the prosecutor. In accordance with Part 1 of Article 45 of the Code, the prosecutor has the right to apply to the court in defense of the rights, freedoms and legitimate interests of citizens, an indefinite number of persons or the interests of the Russian Federation, constituent entities of the Russian Federation, and municipalities. An application in defense of the rights, freedoms and legitimate interests of a citizen can be filed by a prosecutor only if the citizen, due to health reasons, age, incapacity and other valid reasons, cannot go to court himself.

The prosecutor, when filing a statement of claim in defense of the interests of the Russian Federation, constituent entities of the Federation, municipalities or in defense of the rights, freedoms and legitimate interests of an indefinite number of persons, must indicate, in accordance with Part 3 of Art. 131 Code of Civil Procedure of the Russian Federation, what exactly are their interests, what right is violated, and there must also be a reference to a law or other regulatory legal act that provides for ways to protect these interests.

Most citizens and organizations are able to use the funds provided by law for judicial protection, but not all. Minors, orphans, disabled people, pensioners, mentally disabled people, the sick, those affected by a serious illness need a prosecutor to represent their rights in court. In these cases, the prosecutor's statement must contain a justification for the impossibility of bringing a claim by the citizen himself, and evidence must be provided confirming the impossibility of independently going to court, and copies of documents must be attached. The right to assess the validity of reasons belongs to the court. Failure of the prosecutor to comply with these requirements entails leaving the prosecutor's application without progress.

A situation that requires the prosecutor to file a claim in court may be associated with the need to protect the impersonal interest of a fairly large group of people - the collective of an enterprise, a certain social class of citizens, etc. With the participation of the prosecutor, his applications for invalidation, contradictory statements are considered in court. law, legal acts. The Civil Procedure Law provides the prosecutor with the opportunity to participate in the consideration of civil cases when claims are not filed on his initiative.

In Part 3 of Art. 45 of the Code of Civil Procedure of the Russian Federation talks about the prosecutor’s entry into the process and giving him an opinion on the following cases:

about eviction,

about reinstatement at work,

· about compensation for harm,

· caused to life or health.

Also in other cases provided for by the Code:

· in cases arising from public legal relations (subsection III),

· in the order of special proceedings (on the adoption of a child (Article 273));

· on recognizing a citizen as missing or declaring a citizen dead (Article 278);

· on limiting the legal capacity of a citizen, on declaring a citizen incompetent;

· on the restriction or deprivation of a minor aged fourteen to eighteen years of the right to independently dispose of his earnings, scholarship or other income (Article 284);

· application to declare a minor fully capable (Article 288);

· on the forced hospitalization of a citizen in a psychiatric hospital or on the extension of the period of forced hospitalization of a citizen suffering from a mental disorder (Article 304),

· other federal laws (in cases of deprivation of parental rights (Article 70 of the Family Code of the Russian Federation; Family Code of the Russian Federation dated December 29, 1995 No. 223-FZ (as amended on December 28, 2004)); Federal Law of the Russian Federation dated January 1, 1996, No. 1, Art. 16, RF 03.01.2005, No. 1 (Part 1), Art.

· on restoration of parental rights (Article 72 of the RF IC),

· on restrictions on parental rights (Article 73 of the RF IC).

The form of participation of the prosecutor in civil proceedings is understood as a legally enshrined external expression of repeatedly repeated actions for the prosecutor to exercise his powers. (V.G. Bessarabov. Student: Prosecutor's supervision. M 2006, p-359).

From the information letter of the General Prosecutor's Office dated January 27, 2003 N 8-15-2003 “On some issues of the participation of the prosecutor in civil proceedings related to the adoption and enforcement of the Civil Procedure Code of the Russian Federation” -

The powers of the prosecutor to participate in civil proceedings in courts of general jurisdiction are exercised in three forms:

a) by applying to the court with statements, both in the procedure of claim proceedings and in cases arising from public legal relations, as well as in cases considered in special proceedings;

b) by entering into the process to give an opinion in cases of eviction, reinstatement at work, compensation for harm caused to life or health, as well as in other cases provided for by this Code and other federal laws,

c) by filing appeals against decisions of magistrates, cassation submissions against court decisions that have not entered into legal force and supervisory submissions against court decisions that have entered into legal force, with the exception of judicial decisions of the Presidium of the Supreme Court of the Russian Federation, if a prosecutor participated in the consideration of these cases.

An excerpt from the normative resolution of the Supreme Court of the Republic of Kazakhstan “On the preparation of civil cases for trial” indicates categories of cases in which the participation of the prosecutor

required by law:

· on recognizing a citizen as missing or declaring a citizen dead;

· about the adoption of a child;

· on the rejection of the prosecutor’s protest against a normative legal act that does not comply with the law;

· about deprivation of parental rights

recognized by the judge:

· initiated at the request of the prosecutor in the interests of other persons, including the forced hospitalization of a citizen in a psychiatric hospital;

· one of the parties in which are minors, disabled people, citizens with limited legal capacity;

· in which the party is the state or administrative-territorial unit;

In the Republic of Kazakhstan, the procedure for exercising prosecutorial supervision over the legality of judicial acts in civil cases is described in detail in the order of the Prosecutor General of the Republic of Kazakhstan dated December 27, 2002, which approved the instruction “On prosecutorial supervision over the legality of judicial acts in civil cases.”

Recently, the above order was amended by order of the Prosecutor General of the Republic of Kazakhstan.

The most interesting thing about these changes is that an addition has been made to the instructions, according to which prosecutors are instructed to: “When resolving the parties’ requests to file a supervisory protest in a civil case, not to allow unreasonable interference in judicial disputes between non-state economic entities. Protests in the order of supervision in civil cases that do not affect the interests of the state should be brought only if significant violations of the law have been identified by the court (Article 387 of the Code of Civil Procedure of the Republic of Kazakhstan) and only if there is information about a party independently filing a supervisory complaint in the case and its unreasonable rejection by the supervisory court " The requirement to verify the legality of judicial acts that have entered into legal force by requesting cases has been retained upon requests from participants in the process and other persons. In cases where the appeal is left unsatisfied, prosecutors must draw up a reasoned conclusion and provide a response to the applicant within the time limits prescribed by law. The conclusion is approved by the person authorized to lodge protests in the manner of supervision, namely personally by the regional prosecutor and the supervising Deputy Prosecutor General. Responses to applicants are signed by the same persons.

The Department for Supervision of the Legality of Judicial Acts and Enforcement Proceedings in Administrative and Civil Cases is ordered to ensure constant and effective supervision over the legality of judicial acts in civil cases, namely, participation in the consideration of civil cases by courts, verification of the legality of judicial acts during appeal periods and in the manner of supervision , protest illegal judicial acts, constantly analyze the state of legality in civil proceedings. An innovation is the inclusion in this list of the obligation to also check “compliance by courts with procedural deadlines when considering civil cases.” Prosecutors, regardless of the consideration of the case by the supervisory boards of regional and equivalent courts, are obliged to consider, in the manner of supervision, complaints (petitions) against all judicial acts issued by the courts of their jurisdiction. When establishing the grounds for filing a protest, they must make submissions to the Prosecutor General's Office of the Republic of Kazakhstan on the subject of protesting illegal judicial acts, and when deciding on making a submission, be guided by the requirements of Art. 387 clause 3 of the Code of Civil Procedure of the Republic of Kazakhstan and the corresponding decisions of the plenary session of the Supreme Court of the Republic of Kazakhstan.

In accordance with the instructions, prosecutors must take mandatory participation in judicial proceedings in civil cases, when this is provided for by law, recognized as necessary by the court or a higher prosecutor, in cases initiated at the initiative of the prosecutor, in cases affecting the interests of the state, the rights and interests of persons who are Due to their physical and mental disabilities, they cannot exercise their right to judicial protection, minors, to challenge decisions and actions (inaction) of government bodies and officials. Bankruptcy cases are excluded from this list. Also excluded from the text of the instructions is the mention that the need to participate in the consideration of other cases by the court is determined by a higher-ranking prosecutor, based on the tasks of protecting the rights, freedoms and legally protected interests of citizens, legal entities, society and the state.

And, on the contrary, in accordance with the changes, an addition has been made to the instructions, which clarifies that the category of cases affecting the interests of the state includes all cases in which state bodies, government agencies and enterprises are parties, with the exception of civil cases in disputes regarding the recovery from consumers of amounts owed for services rendered by state-owned enterprises. An explanation was also given that participation in the court of first instance in interdistrict specialized courts is assigned to prosecutors stationed at the location of these courts, except in cases where the court considers claims of other prosecutors. When a claim of other prosecutors is considered in an interdistrict specialized court, participation in the consideration of the case in the first instance is ensured by employees of the relevant divisions of regional or equivalent prosecutor's offices.

According to the instructions, if gross violations of the law are detected in the case under consideration, the participating prosecutor is obliged to petition the court to issue a private ruling in relation to officials or organizations. Based on identified facts of violation of the law, take measures to conduct additional checks and resolve the issue of bringing the perpetrators to responsibility established by law. Also take measures to hold judges accountable in accordance with paragraph 3 of Art. 6 Code of Civil Procedure of the Republic of Kazakhstan.

1.3. Features of the development of the institution of the prosecutor’s office at the present stage.

The basis of the relationship between the prosecutor's office and the court in civil cases in all modern legal systems is such a division of competence, according to which the prosecutor's office plays the role of a special “trigger mechanism” of justice, and the prosecutor participating in the case is a special subject of civil procedural relations, facilitating the implementation of judicial power.

In accordance with the Law “On the Prosecutor's Office of the Russian Federation,” the participation of the prosecutor's office in the consideration of cases by courts does not relate to supervisory activities. But, having made a concession to opponents of vesting the prosecutor with comprehensive powers, formally excluding from his supervisory function participation in the consideration of civil cases by courts, the legislator did not change the main thing - the powers of the prosecutor in civil proceedings. Clause 4 of Art. 35 of the said law refers to the current procedural legislation, which, despite the abolition of Art. 12 of the Code of Civil Procedure, retained all the rules on the participation of the prosecutor in civil proceedings, including the provision of an opinion on all issues arising during the consideration of the case and on the case as a whole (Article 41 of the Code of Civil Procedure).

During the judicial legal reform, the prosecutor's office was significantly squeezed out in its traditional areas, and, above all, in the area of ​​supervision over the legality of court decisions. Supervision over the legality of court decisions has been replaced by the participation of the prosecutor in the consideration of cases by the courts. The total nature of the previous “general” supervision, including control of the legal behavior of citizens, has been transformed into prosecutorial intervention based on received information about facts of violation of the law.

However, despite these changes in the legislation on the prosecutor's office, according to the Civil Procedure Code the prosecutor is still vested with powers that no person participating in a civil case has.

The desire to limit the participation of the prosecutor in civil proceedings is unjustified or, in any case, premature. The Prosecutor's Office was initially created as the only body supervising the implementation of laws. Strict observance of laws is one of the signs of a rule of law state. Currently, there are two polar trends regarding the participation of the prosecutor in civil proceedings: on the one hand, the general restriction of his rights in civil proceedings, on the other, the strengthening and expansion of rights in terms of the human rights function.

In contrast to the previously existing procedure, the prosecutor is now unable to enter into the process at any stage and give an opinion on any category of cases. According to Art. 45 of the Code of Civil Procedure of the Russian Federation, the prosecutor enters into the process and gives an opinion only in cases of eviction, reinstatement at work, compensation for harm caused to life or health, as well as in other cases provided for by this Code and other federal laws.

V.G. Bessarabov: “In the process of improving justice, we must still put the principle at the forefront: do not spoil, do not lose, do not harm, do not break what has been done positively over many, many years. As part of the legislative reform, it is necessary, based on accumulated experience, to carry out a balanced adjustment of the status of the prosecutor in civil and arbitration proceedings. Which would ensure the most effective implementation of the tasks assigned to the prosecutor’s office for the benefit of the whole society. There is no doubt that, at the present stage of state construction. In the context of the formation of new economic relations in Russia, the implementation of the constitutional guarantee to ensure access to justice objectively presupposes the need to fully use the existing mechanisms for protecting the rights and legitimate interests of citizens and legal entities, including the potential of the prosecutor's office.

The judiciary, as well as the legislative and executive, must be controlled by society and the state. However, analysis of publications in media mass media, practical experience shows that many citizens still do not see in the court an effective instrument for protecting their rights and restoring justice, as is clearly evidenced by the facts of abuse of official powers by some judges, ignoring the requirements of the Constitution of Russia and other regulations, which they allow when ruling justice." (Activities of the Russian prosecutor’s office at the present stage: state and prospects. “Crime in its various manifestations and organized crime: Collection of articles. M., 2004)

The main disadvantages of our “domestic Themis” are, first of all, violation of the deadlines for consideration of cases, when their hearings are postponed without sufficiently good reasons or postponed without instructions new date their consideration, as a result of which people sometimes reach despair while waiting for the results of resolving their disputes.

There is also deliberate red tape on the part of court officials in issuing copies of court decisions and not providing citizens with the opportunity to timely familiarize themselves with the minutes of the court hearing, which limits their time for filing cassation complaints, including for the prosecutor to bring a qualified cassation provision to a higher authority. judicial authority.

In addition, the lack of the necessary professional training of part of the judiciary, in the context of constantly changing legislation and the increasing complexity of substantive law, negatively affects the quality of the court decisions they make.

It is also noteworthy that the number of judicial errors identified in cassation instances of courts of general jurisdiction, which subsequently led to the cancellation and amendment of court decisions, has not decreased over the years. At the same time, it is also of concern that illegal court decisions are often made in cases affecting the constitutional rights of citizens, labor, housing, compensation for harm, etc.

than citizens are forced to petition to transfer the consideration of their disputes to other regions, since they see in the actions of a particular

judges have a clear interest in the outcome of the case (primarily this applies to cases involving violations of the legal rights of citizens by government bodies). Such facts are simply unacceptable in a rule-of-law state.

For the most part, judges often take the position of rejecting any criticism, forgetting that a self-respecting government must fight for the purity of its ranks, freeing itself from unscrupulous employees.

It is, of course, impossible not to take into account the objective reasons for violations of deadlines for consideration of cases, namely: the annually increasing increase in the number of civil cases, the insufficient number of the judiciary and, in this regard, overworking of judges, as well as unsatisfactory material and technical support necessary for the normal functioning of the courts.

The introduction of the institution of magistrates, designed to relieve the workload of district courts and take over the consideration of simple administrative cases, is being hampered due to the lack of material resources provided for this in the budget.

One cannot ignore the fact that for most citizens, going to court is currently an unaffordable luxury, since the services of a lawyer and the state fee for filing claims amount to a very significant amount. The listed factors negatively affect the accessibility and effectiveness of justice. Often, the prosecutor's office is the only body where citizens can receive free, qualified legal assistance.

The topic of prosecutorial supervision in the Republic of Kazakhstan is consonant with the controversy developed by Russian lawyers. In the Republic of Kazakhstan

The prosecutor's office is recognized as an independent state body in the mechanism of the state and is not included in any of the branches of state power. At the same time, a separate section is devoted to the prosecutor’s office in the Constitution of the Republic of Kazakhstan. In paragraph 2 of Article 83 it is written: “The Prosecutor’s Office of the Republic constitutes a single centralized system with the subordination of subordinate prosecutors to higher ones and the Prosecutor General of the Republic.”

Recently, various points of view on ways of further functioning of the prosecutor's office have been actively discussed. The first point of view, presented primarily by the prosecutors themselves, is based on the current position of the prosecutor's office as a body that supervises the legality of acts and actions of state authorities, organizations and officials, maintaining and even expanding its powers in this area.

Proponents of a different approach adhere to the need to reform the prosecutor's office: abolishing it or transferring its individual functions to other government bodies, as well as preserving only the functions of criminal prosecution of persons who have committed crimes and maintaining state prosecution in court.

Problematic issues of prosecutorial supervision in civil proceedings The Constitution of the Republic of Kazakhstan enshrines the basic principles of democratization, expansion of the scope of human rights in the Republic of Kazakhstan, and the progressive construction of a rule of law state in the country.

The main feature that distinguishes a rule-of-law state from a non-law state is compliance with the requirements of the rule of law. It is hardly possible to achieve this by abandoning prosecutorial supervision, the purpose of which is to ensure the rule of law, unity and strengthening of the rule of law, protection of the rights and freedoms of citizens, as well as the interests of society and the state.

A rule of law regulating the mandatory sending of judicial acts within five days from the moment they are issued in final form to the prosecutor, regardless of his participation in the case, could discipline judges and ensure the timely expulsion and issuance of copies of court decisions not only to prosecutors, but also to persons participating in the case. in fact.

Higher supervision over the legality of judicial acts is impossible without timely informing the prosecutor about cases being considered in court. There is an opinion that the Code of Civil Procedure of the Republic of Kazakhstan should introduce norms obliging judges to promptly inform the prosecutor about the consideration of a civil case in the appropriate court, with a copy of the court’s ruling assigning the case to trial. This provision of the law would allow the prosecutor to provide proper supervision, 100% participation in cases of the mandatory category, organize work more efficiently, control the timing of consideration of cases, which in turn will reduce the number of illegal judicial acts.

The issue of excluding judicial supervision over the legality of judicial acts should be resolved and supervision in this area should be completely entrusted to the prosecutor's office, since the courts should administer justice and not engage in supervisory activities.

Introduction of the specified norms of the Law, changes in departmental instructions, as well as methods for its practical application certainly contributes to building relations between the court and the prosecutor’s office in accordance with constitutional principles.

At the same time, the prosecutor's office, as a state body exercising supreme supervision, has the necessary efficiency in identifying violations of the law and eliminating them, which fully meets the interests of the legality and inviolability of the Basic Law of the country.

Abishev M.B.: “I believe that improving supervisory activities is impossible without making changes and additions to current legislature. Thus, changes regarding the mandatory participation of the prosecutor in certain categories of civil cases must be made not only to departmental instructions, but also to legislative acts, detailing these categories.”

PRACTICE OF PARTICIPATION OF THE PROSECUTOR IN CIVIL PROCEEDINGS

2.1 activities of the prosecutor’s office in the Russian Federation

The problem of developing the legal status of the prosecutor's office is that they want to retain only the function of state prosecution, like the US FBI, which is a structural division of the Ministry of Justice.

Such proposals are made without taking into account the great work that the prosecutor's office carries out, both in the form of general supervision and through participation in civil proceedings.

The Law “On the Prosecutor's Office of the Russian Federation,” by depriving the prosecutor of supervisory functions in court, practically nullifies the effectiveness of the participation of the prosecutor's office in civil proceedings. Cancellation of Art. 12 of the Code of Civil Procedure further complicates the already contradictory position of the prosecutor in civil proceedings: it is not clear why the prosecutor should participate in civil proceedings if he is deprived of his main function - supervision of execution during the consideration of the case.

From the point of view of the interests of legality, it is necessary to preserve the right of the prosecutor to the possibility of bringing protests in the manner of supervision to any judicial acts with a time limit.

In support of this position, one can give an example when the prosecutor’s office needs to respond, but it is deprived of this right. In a specific case, the district court at the beginning of 2004 made a decision imposing the obligation on the village administration to provide title documents to three individuals to the right of lifelong inheritable ownership land plot. The court did not establish reliably that the testator owned the land precisely under this type of property right, and the court considered it possible, in violation of the provisions of paragraph 1 of Art. 21 of the Land Code of the Russian Federation Land Code of the Russian Federation (136-FZ (as amended on 03/07/2005); SZ RF from 10/29/2001, - 44, art. 4147, SZ RF from 03/07/2005, - 10, art. 763.) grant the right of lifelong ownership to other persons. The subject composition of a given property right is predetermined by its exclusivity, i.e. sole copyright holder. The court established this right in relation to three persons at once, thereby creating a lifelong inheritable shared ownership (i.e. the new kind property rights). The parties did not appeal this decision, and the prosecutor was not involved in the case. The question remains open about the legality of such a judicial act, its enforceability and its right to exist. If the prosecutor's right to protest by way of supervision against any judicial acts with a time limit was preserved, such a question would not arise.

Failure to comply with Russian legislation in the area of ​​material support for labor veterans and disabled people continues to cause great concern. Over the past few years, prosecutors have thwarted many attempts by local authorities to limit the effect of certain benefits established by law for these categories of citizens. Thus, in modern conditions it is difficult to overestimate the proactive activities of prosecutors to protect the rights of citizens.

Slightly less than 300 applications were received by the St. Petersburg prosecutor's office during the work " hotline"about violations of citizens' rights in the housing and communal services sector, reports AZHUR with reference to the press service of the prosecutor's office.

The “hotline” was launched due to an increase in the number of citizens’ requests regarding problems in this area. The statistics of prosecutorial response acts were also analyzed, according to which in 2006 the number of proposals to eliminate violations of the law submitted by district prosecutors to housing and communal services increased 1.5 times; 2 times - the number of those brought to disciplinary liability based on the proposals of guilty officials, more than 2 times - the number of those administratively punished in administrative cases initiated by prosecutors for violations of legislation on housing and communal services.

Thus, the first results of the “hotline” indicate a great public outcry caused by the initiative of the prosecutor’s office, but mainly about the prevalence of violations of citizens’ rights in the housing and communal services sector of the city.

In many regions, it is prosecutors who are the first to take concrete actions to protect the rights of many thousands of citizens who have suffered from the arbitrariness of local authorities; they widely use judicial procedures to eliminate such offenses.

The head of the administration of a constituent entity of the Russian Federation adopted Resolution No. 192 “On measures to improve regulation in the field of road transport", this resolution has been amended.

In accordance with these regulations, agreements between citizens when making transactions in relation to Vehicle without notarization or without issuing a certificate-invoice through enterprises, as well as powers of attorney not notarized to perform actions relating to real or other rights to vehicles, are subject to mandatory registration in the traffic police departments and are considered invalid if they are not registered.

The prosecutor applied to the court to invalidate these decisions regarding the listed legal requirements, considering them to be contrary to the requirements of the current legislation.

According to Article 76 of the Constitution of the Russian Federation, federal constitutional laws and federal laws are adopted on subjects of jurisdiction of the Russian Federation that have direct effect throughout the entire territory of the Russian Federation. Laws and other regulatory legal acts of the constituent entities of the Russian Federation cannot contradict federal laws. In the event of a conflict between a federal law and another act issued in the Russian Federation, the federal law shall apply.

As can be seen from the case materials, decisions adopted by the head of the administration of a constituent entity of the Russian Federation regarding the mandatory registration in the traffic police departments of contracts between citizens in relation to vehicles that are not notarized, as well as powers of attorney to perform actions in relation to vehicles and declaring them invalid in the absence of such registration, contradict Articles 164, 166-179 of the Civil Code of the Russian Federation. In this regard, the court of first instance rightfully granted the prosecutor's application to invalidate the provisions of the contested resolutions that contradict federal legislation.

Despite the fact that the need for the participation of the prosecutor in civil proceedings is justified, the court does not always agree with this position.

It is noted that the prosecutor in today's civil proceedings is deprived of the right to request a case from the court, which also indicates the desire of the judicial system to be closed and does not contribute to the transparency of the techniques and methods used in judicial proceedings by some judges.

However, the judicial system itself is not always able to satisfy the need of citizens to restore violated or disputed rights.

From the “Rossiyskaya Gazeta” dated February 2, 2000: “due to red tape, the Essentuki court has been unable to divide home ownership for the sixth year. Five decisions have already been overturned due to violations of substantive and procedural law committed by the court. During this time, the parties almost killed each other, and one party was convicted of committing these actions and has already served the assigned sentence, and the trial is still ongoing with no end in sight. At the same time, it should be noted that the subjects of these controversial legal relations are pensioners and two disabled people of the second group.”

“So, in Karachay-Cherkessia, citizens, for reasons of distrust in local justice authorities, petitioned to change the territorial jurisdiction and transfer the consideration of their cases to neighboring regions, including the Stavropol Territory. At the same time, there were cases of picketing, pogroms of court buildings, appeals to higher authorities, and numerous complaints signed by thousands of citizens. The indignation of the population caused by unjust court decisions and illegal prosecutions resulted in this form (“RG” 06.16.2000).”

The consistent ousting of the prosecutor from civil proceedings as a trend and the deprivation of certain powers is confirmed by the following example. Thus, in the answer to question 26 (section “Procedural Issues” of the Review of Judicial Practice of the RF Armed Forces for the third quarter of 2003, approved by Resolutions of the Presidium of the RF Armed Forces dated 12/03/2003 and 12/24/2003) it is indicated that the prosecutor does not have the right to accept and consider complaints on the actions (inaction) of bailiffs in executing court decisions due to the fact that the prosecutor does not have the right to supervise compliance with the Constitution of the Russian Federation and the implementation of laws in the course of the administration of justice in civil cases. (letter of the Ministry of Justice of the Russian Federation dated December 8, 2003 - 06/12477-AM and letter of the Deputy Chairman of the Supreme Court of the Russian Federation V.M. Zhuikov dated October 20, 2003 - 1969-4/general)

Today there is an expanding process in a number of subjects of the Russian Federation of depreciation of the rights and freedoms proclaimed in the country. First of all, these are attempts regional authorities limit the rights of citizens established by Chapter 2 of the Constitution of the Russian Federation (the rights of workers, minors, pensioners).

According to prosecutor's statistics, violations of citizens' rights have been registered in almost all regions. Cases of purchase of residential space through fraud and extortion, with violation of the rights of incompetents and minors, were identified. Along with such traditional forms of response as making submissions and protests, prosecutors effectively used the filing of statements of claim in accordance with Art. 41 Code of Civil Procedure.

The focus of attention of prosecutors over the past few years has been on the implementation of labor laws. In particular, questions about untimely payment of wages, issues of compliance with labor protection legislation, reinstatement at work, etc.

The prosecutor's office establishes facts about violations of labor legislation using a variety of sources of information: from regularly requested data from statistical bodies, to complaints and appeals from citizens and media publications.

The group for ensuring the participation of prosecutors in civil and arbitration proceedings of the regional prosecutor's office analyzed the practice of participation of prosecutors in the consideration of cases of reinstatement in 2003.

According to the reporting data of the judicial department of the Kursk region, during the specified period, 246 cases of reinstatement were considered and decisions were made, of which claims in 143 cases were satisfied.

The situation with the payment of wages in the Oryol region is constantly changing. Statistics show that as of February 1, 2006, wage arrears amounted to 91 million 522 thousand rubles; over the month it increased by two million, and at the beginning of the second quarter of the year it decreased to 81 million.

The regional prosecutor's office is taking comprehensive measures against labor law violators. The Livensky branch of Passenger Transport Company OJSC had a debt on wages in the amount of 1 million 300 thousand rubles. As of April 1, 2006, their debt to employees was repaid.

When exercising supervision and participation in the consideration of civil
cases by courts, including arbitration courts, the prosecutor should keep in mind that the fact that 90% of the filed claims are satisfied indicates not only their validity, but also that there is a prevalence of violations of the law. The analysis shows that 10% of all cases considered by courts of general jurisdiction are cases on housing disputes, the share of divorce cases among all civil cases considered by courts of first instance is 36.7% (64), 85% of claims on labor disputes is satisfied by the courts, but, as practice shows, only a small proportion of victims go to court. The prosecutor's office annually identifies more than twenty thousand violations in the field of labor legislation.

2.2 activities of the prosecutor’s office in the Republic of Kazakhstan

According to the constitutions and laws on the prosecutor's office of most CIS member states, the prosecutor's office is the supervisory body for the accurate and uniform implementation of laws. According to the legislation of the CIS countries, prosecutorial supervision also extends to the execution of laws by citizens. This is indicated in the Constitutions.

Prosecutor's office in modern society is the result of a long evolution and transformation of the constitutional and legal status of the prosecutor’s office in the CIS member states; These transformations can only occur gradually, taking into account the socio-economic situation in each country.

The Prosecutor's Office of the Republic of Kazakhstan exercises its powers in strict accordance with the Constitution and laws. Today, its activities exclude the facts of substitution of other government bodies, unjustified interference in the functional activities of various economic entities. At the same time, the prosecutor’s office, in accordance with the requirements of Article 83 of the Constitution of the Republic of Kazakhstan, began to more actively identify violations of the law committed by state bodies and their officials, take measures provided for by law to eliminate them, including by filing protests against illegal acts of executive bodies and the judiciary, as well as more often respond to non-compliance with existing laws and presidential decrees.

Here are some data from prosecutor's inspections for 2005-2006.

IN TO. Ust-Kamenogorsk. November 17. Regional prosecutor Kushkaliev: “During the inspections, facts of violations of Article 23 of the Constitutional Law of the Republic of Kazakhstan “On Elections in the Republic of Kazakhstan” were revealed in pre-trial detention centers and temporary detention centers. After the intervention of the prosecutor's office, polling stations were created in these institutions. Work has been carried out on the reliability of voter lists; in connection with numerous statements from citizens about violations, facts of forgery have been identified.” The East Kazakhstan Prosecutor's Office has made representations.

Over the course of three months, the Almaty District Court considered 36 claims from the Almaty district prosecutor in defense of the rights of minors. The bulk of claims are brought in the interests of minors with physical and mental disabilities. All claims have been satisfied.

North-Kazakhstan region. The prosecutor's office has identified numerous violations of the property rights of children left without parental care, including facts of illegal alienation of real estate belonging to them. Facts have been established of the sale of several apartments, the co-owners of which were PTS students, although in the lists of the school administration these apartments are listed as belonging to the previous owners. Violations were identified in the activities of the guardianship and trusteeship authorities, which did not ensure the timely adoption of measures to return alienated property, including in relation to unscrupulous guardians and trustees who encroached on the property of children. Prosecutor's supervision measures have been taken for all violations.

Astana. 22nd of May. The prosecutor's audit revealed facts of failure to provide emergency surgical care to patients, charging citizens for medical examinations and issuing certificates, violations of the rules for storing and writing off medicines, and using medicines for other purposes than their intended purpose. In a number of areas of the region, the population does not have access to medical services.

Pavlodar region. October 26. Gross violations of the Law of the Republic of Kazakhstan “On Employment” were revealed by employees of the prosecutor’s office during an inspection of the employment department and social programs city ​​akimat. In an automated information system Personal records, monitoring and analysis of employment, prosecutors did not find data on the TRN, SIC of the unemployed. In the registration log, refusals of the offered work were not confirmed by written statements from the unemployed. Falsification of documents has been established. At the request of the prosecutor, reprimands were issued.

During the inspection of the application of labor protection legislation in the activities of the Department of the Ministry of Labor and Social Protection of the Population of the Republic of Kazakhstan in the Zhambyl region, numerous violations of the requirements of the legislation were established. Resident doctors keep careless entries in the register for patients. The main causes of accidents at work are: unsatisfactory work organization, violation of safety requirements when operating vehicles, deficiencies in training in safe work practices and violation of labor discipline. Violation of the requirements of the Rules for the investigation and recording of accidents and other health injuries. The Department's leadership agreed with this state of affairs. But the results of the inspection were submitted to the board of the regional prosecutor's office with consideration of the responsibility of the guilty officials.

Statistics show that a court decision does not guarantee citizens and organizations the protection of their rights and legitimate interests, which means that there is an urgent need to monitor the legality of judicial acts in civil cases.

Thus, the resolution of the Turksibsky District Court dated December 28, 2005 on the direction of Yu.D. Kozyrev. compulsory treatment for alcoholism was canceled with the termination of proceedings, upon the protest of the prosecutor by the supervisory board of the Almaty City Court. The court ruling stated that Kozyrev Yu.D. systematically abuses alcohol, steals everything from the house, uses foul language for no reason in the presence of minor children, has repeatedly been subjected to anonymous treatment, and haunts both his family and neighbors at night.

The prosecutor noted that the case file does not contain: explanations from neighbors and the adult daughter, the only one living with Yu.D. Kozyrev, there is no information about repeated treatment, and the medical report in the case was not signed by members of the commission and was not sealed. Neither the patient, nor representatives of health and internal affairs authorities, nor relatives participated in the open court hearing. Statement from Kozyrev’s daughter Yu.D. refutes the court ruling: minor children do not live with them, there are no scandals at home, her father was never treated for alcoholism, and Kozyrev’s brother Yu.D., who filed a statement with the court. does not live with them. The prosecutor's protest was justified and subject to satisfaction.

Since the court is the subject of law enforcement activities, prosecutors, within the limits of their competence, are obliged to take all measures provided by law to ensure supervision over the legality of judicial acts.

Supervision over the legality of judicial acts does not in any way affect the independence of judges, since the main task of the prosecutor's office is to correctly orient the court towards issuing a lawful judicial act and reducing the number of judicial errors.

Current legislation effectively protects judges; their status can only be challenged by the institutions of the judicial system itself. Judges have additional immunity, their activities are less controlled, therefore the relationship between the prosecutor's office and the court should be built on the so-called system of “checks and balances”. The Prosecutor's Office, being a supervisory body accountable only to the President of the Republic and not part of the structure of any branch of government, should be a restraining factor and a guarantor of legality in civil proceedings.

The legislator, in contrast to criminal proceedings, provides for the mandatory participation of the prosecutor in civil cases only in certain categories of cases, while the prosecutor, by virtue of Article 55 of the Code of Civil Procedure of the Republic of Kazakhstan, is generally obliged to exercise supervision over the legality in civil proceedings.

Civil legislation is imperfect, there are cases when legislative acts contradict each other, so it is necessary to change the criteria for assessing the effectiveness of prosecutorial supervision over the legality of judicial acts in civil cases, not only based on the number of canceled and amended judicial acts without protests from the prosecutor.

The position of the prosecutor's office must be unchanged and consistently defended in all courts.

In the course of supervising the legality of judicial acts in civil cases, some difficulties arise when checking judicial acts due to the lack of specific rules regulating the methods and techniques of supervision in civil proceedings, which could not affect the independence of the court.

Thus, there are no norms of the Code of Civil Procedure of the Republic of Kazakhstan regulating the mandatory issuance of court orders to the prosecutor.

At the same time, the legal levers at the disposal of the prosecutor's office are sufficient to carry out effective supervision. It is necessary to take a principled approach not only to the legality of judicial acts, but also to the activities of the court, from the bailiff, secretary to the judge.

CONCLUSION

CONCLUSION

To create a democratic rule of law state in the country, a long transition period is necessary. This happens because there are no stable legal traditions or moral climate that will allow laying the foundations of a rule of law state and implementing its principles. Many laws, presidential decrees, government regulations are contradictory, the mechanism for their implementation is imperfect, so they are often not implemented.

The judicial and legal reform carried out in Russia has practically not increased the prestige of the courts and their role in protecting the rights of citizens and the interests of the state. Of course, at this time, the human rights functions of all government bodies, including the prosecutor’s office, should be fully used. As practice shows, the prosecutor's office remains the most accessible body for citizens in the event of a violation of their rights, which is able to quickly and competently investigate and take free measures to protect the violated rights.

Judicial reform entails disappointments associated with a decrease in the guarantee of justice.

With few reasonable exceptions, simplification of judicial procedures can have many consequences, including the creation of favorable conditions for judicial abuse, violations of the rule of law and the rights of participants in the process, and a decline in the prestige of the court, law enforcement and law. One of the undoubted consequences of this kind of judicial reforms is a decline in the culture of justice. Its educational and preventive effect, distrust of citizens.

The proclamation of the adversarial principle cannot in fact be ensured: there is neither the required number of prosecutors - prosecutors, nor defense lawyers for this. The traditional legal profession is increasingly turning into a legal profession for the wealthy elite; the municipal legal profession has not been created. Consequently, low-income citizens (and these are the majority) do not go to the court or the bar, but to the prosecutor’s office, where their appeals are usually considered relatively quickly, and most importantly, free of charge.

Prosecutor's offices must take measures to properly organize and exercise supervision over the legality of judicial acts in civil cases; must seek a lawful decision through direct participation in court hearings; using prosecutorial response measures to stop and eliminate red tape by the courts when considering cases; systematically check the legality and validity of court decisions and promptly protest illegal ones, both those that have entered into force and those that have not entered into force; increase the responsibility of lower-level prosecutors' offices, provide them with practical and methodological assistance, disseminate and implement positive experience.

The priority areas in the work of the prosecutor's office in the modern period are, first of all, the protection of the rights and freedoms of citizens. Interests of the state, formation of staffing.

The aggravation of the social situation in the country, the decline in living standards, unemployment, numerous violations of labor, housing and other constitutional rights of citizens - put the protection of their rights, freedoms and legitimate interests to the fore by means of prosecutorial supervision. The main thing here is to actually ensure the restoration of violated rights. The Constitution recognized the person, life, rights and freedoms as the highest values ​​of the state and, therefore, the prosecutor, while representing the interests of the state, provides supervision over the observance of the constitutional rights and freedoms of man and citizen.

Being accountable only to the President of the Republic of Kazakhstan, the prosecutor's office is the legal mechanism of the head of state to exercise his functions as a guarantor of the unity of the people and state power, the rights and freedoms of man and citizen. Thus, in accordance with the constitution, only the prosecutor's office, by challenging laws and other legal acts, including judicial ones, using legal methods, is able to ensure full control over the activities of all branches of a single state power.

When determining the importance of the institution of prosecutor’s participation in civil proceedings today, it is important to perceive the idea of ​​the rule of law, such principles as the rule of law in all spheres of society, the connection between the law of the state itself and its

bodies, the inviolability of personal freedom, the rights and interests of a citizen, the mutual responsibility of the state and the individual. But in a rule-of-law state, principles are not only proclaimed, but also guaranteed by the entire system of government measures. In a rule-of-law state, the rights and interests of citizens are inevitably combined with the interests of the state and society, and are in no way opposed, so there should be no fear that the prosecutor will “unnecessarily interfere in private affairs, causing unrest and scandals.” On the contrary, by participating in civil proceedings, the prosecutor, independently or in collaboration with the court, carries out an important human rights function and is an important guarantee of the effectiveness and legality of legal proceedings, the protection of individual and state rights, thereby contributing to the development of the rule of law.

The prosecutor's office should focus on cases that have great public resonance, on disputes that affect the interests of the state, socially vulnerable segments of the population, minors, on appealing the actions of government bodies and officials, on labor disputes.

A study of the practice of prosecutors filing and maintaining claims in courts has shown that the right to file claims is actively used by many prosecutors as an effective means of actually eliminating violations of the law. The high satisfaction rate of claims (85%) clearly demonstrates the effectiveness of prosecutorial intervention.

Thus, the protection of constitutional and other legally protected rights and interests of citizens, society and the state through the participation of the prosecutor in civil proceedings is one of the priorities in the activities of the prosecutor’s office at the present stage, which is ensured by submitting applications to the court and direct participation in the proceedings , protesting illegal decisions.

With the adoption of the new Code of Civil Procedure of the Russian Federation, the prosecutor's office has largely lost its supervisory functions, since it cannot exercise prosecutorial authority. verification of court decisions on any of the categories of cases. As a result, judges can make erroneous court decisions without being held accountable for this, which is inconsistent with the principle of equality of all before the law and the court. Now judicial supervision can be carried out only in the event of a supervisory complaint (prosecutor's presentation), which in essence is not judicial supervision, but selective judicial control. All this creates scope for judicial discretion and violation of the rights and legitimate interests of citizens when making court decisions. In the future, this will contribute to an increase in citizens' appeals to the European Court of Human Rights, which undermines the authority of not only our judicial system, but to a certain extent the entire Russian state. In this regard, it seems necessary to legislatively restore the supervisory powers of the prosecutor's office in order to increase guarantees of legality in civil and arbitration proceedings, where the most significant harm is caused to the economic security of the individual, society and the state by unjust judicial acts.

BIBLIOGRAPHY

Regulatory acts:

1. Constitution of the Russian Federation (as amended on March 25, 2004); RG dated December 25, 1993, No. 237, SZ RF dated March 29, 2004, No. 13, art. 1110.

2. Constitution of the Republic of Kazakhstan

3. Civil Procedure Code of the Russian Federation dated November 14, 2002 No. 138-FZ (as amended on December 29, 2004); SZ RF dated November 18, 2002, No. 46, art. 4532, SZ RF dated 01/03/2005, No. 1 (part 1), art. 20.

4. Civil Procedure Code of the Republic of Kazakhstan

5. Federal Law “On the implementation of the Civil Procedure Code of the Russian Federation” dated November 14, 2002 No. 137-FZ; SZ RF dated November 18, 2002, No. 46, art. 4531.

6. Federal Law “On the Prosecutor’s Office of the Russian Federation” dated January 17, 1992 No. 2202-1 (as amended on August 22, 2004); Federal Law of the Russian Federation dated November 20, 1995, No. 47, Art. 4472, SZ RF dated August 30, 2004, No. 35, art. 3607.

7. Decree of the President of the Republic of Kazakhstan, having the force of the law “On the Prosecutor’s Office of the Republic of Kazakhstan”

8. Order of the Prosecutor General’s Office of the Russian Federation “On ensuring the participation of prosecutors in civil proceedings” dated December 2, 2003 No. 51.

9. Order of the Prosecutor General of the Republic of Kazakhstan dated June 27, 2006 No. 37 “On approval of the instructions on the organization of prosecutorial supervision over the legality of judicial acts in civil cases”

10. Information letter of the Prosecutor General's Office of the Russian Federation “On some issues of the participation of the prosecutor in civil proceedings related to the adoption and implementation of the Civil Procedure Code of the Russian Federation” dated January 27, 2003 No. 8-15-2003.

11. Resolution of the Plenum of the Supreme Court of the Russian Federation “On some issues that arose in connection with the adoption and entry into force of the Civil

12. Procedural Code of the Russian Federation" dated January 20, 2003 No. 2; Bulletin of the Supreme Court of the Russian Federation. — 2003. No. 3

13. Instruction No. 60, approved by order of the Prosecutor General of November 21, 2002, “On the organization of prosecutorial supervision over the application of laws, observance of rights and freedoms and freedoms of man and citizen in the socio-economic sphere.”

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The participation of the prosecutor in the consideration of civil cases in the court of first instance is carried out in the forms of filing and maintaining a claim in court, as well as participation in the consideration of civil cases by the court and giving an opinion. Filing a claim by the prosecutor. The prosecutor does not have the right to use coercive measures against persons guilty of violating the law. However, he cannot remain indifferent if there is a need to eliminate a violation of the law, restore violated rights and legally protected interests of the state, enterprises, organizations and citizens. For these purposes, he is given the right to file a claim in court in order to restore the violated law through judicial influence. The filing of a claim by the prosecutor is one of the means of his response to established violations of the law. The procedural position of the prosecutor who submitted the statement of claim is characterized by certain features that distinguish him from other persons filing a claim. The prosecutor does not bear legal costs for the stated claim. He cannot be refused to accept the statement of claim. Only in one case, when the person in whose interests the claim is brought, does not have the right to go to court, the prosecutor may be refused to accept the statement of claim. A counterclaim cannot be brought against the prosecutor. The defendant may file a counterclaim only against the person in whose interests the prosecutor filed the claim. The court's decision on the prosecutor's claim does not apply to the prosecutor, but to the person in whose interests the claim is filed. The prosecutor does not have the right to perform procedural actions characteristic of a party: enter into a settlement agreement, transfer the case to an arbitration court. "Prosecutors use their powers to bring claims mainly when it is necessary to protect the property interests of the state, enterprises and organizations. Compensation for material damage caused by offenses is often associated with the need for prosecutors to show integrity in the fight against localism and departmental interests. The prosecutor uses the right to bring a claim granted to him by law only in cases where the guilty person evades or refuses to voluntarily compensate for the damage. In cases voluntary compensation material damage, the prosecutor should provide the managers of enterprises, as well as the legal service, with the necessary legal assistance, creating an atmosphere of inevitability of liability of officials of enterprises and organizations for failure to comply with the requirements of the law to hold accountable workers through whose fault material damage was caused.318 The prosecutor also uses his powers to file claims when protecting the interests of minors, disabled people, the elderly, parents of large families, persons under guardianship or trusteeship, military personnel, that is, those who do not have the opportunity to independently go to court to protect their interests. The Prosecutor General of the Russian Federation in order No. 1 of January 5 1997 “On the participation of the prosecutor in civil proceedings” invites prosecutors to use their right to file a claim in court in the interests of persons especially in need of social and legal protection, as well as society and the state, while not allowing substitution of the functions of legal services and economic managers. If officials or citizens do not use their right to file claims, and this is required by the interests of ensuring the rule of law, the prosecutor brings to the attention of these officials and citizens information about their right to go to court to protect their rights and legitimate interests and explains how do it. However, if these officials and citizens do not wish to exercise this right, the prosecutor independently initiates proceedings in court. This primarily applies to such areas of civil proceedings as security federal property from illegal attacks on her; compensation for harm; violation of health and safety laws; violation of environmental legislation, etc. The prosecutor brings a claim in cases where the violated rights and interests of enterprises and citizens protected by law are of particular public importance. This may include claims by prosecutors, the reason for which was natural disasters, accidents with people, catastrophes, accidents, when the prosecutor is obliged to take measures to protect the rights and legitimate interests of victims, as well as enterprises and organizations that suffered material damage. In cases of encroachment on the interests of the state through the conclusion of various kinds of contracts and agreements, when material damage is knowingly caused to the state, the prosecutor must file a claim to invalidate the concluded contracts and agreements. Prosecutors use their right to file claims when it is necessary to protect the rights and legitimate interests of citizens violated unlawful actions of government bodies and officials. In accordance with the Law of the Russian Federation “On appealing to the court of actions and decisions that violate the rights and freedoms of citizens,” the consideration of complaints in court takes place according to the rules of the civil court. 1993. No. 19. Art. 685 (as amended by Federal Law No. 197-FZ of December 14, 1995). VIII. Participation of the prosecutor in the consideration by courts of civil cases319pre-trial proceedings, with exceptions and additions established by this law and other legislative acts. When filing claims, the prosecutor proceeds from the requirements of the law on the jurisdiction of complaints to the judicial authorities. If a complaint about a violated right is within the jurisdiction of the court, then the prosecutor has the right to file a claim; if not, then he uses other means of prosecutorial response - a protest, a motion to eliminate violations of the law, etc. The courts have jurisdiction over complaints from citizens regarding an illegally imposed fine, refusal to register vehicles or buildings; in the reception of children in preschool institutions or to school. The court may also consider complaints against other actions of officials that infringe on the rights of citizens. The court does not have the right to accept for consideration complaints against the actions of persons conducting an inquiry, investigator, prosecutor, judge, bailiff (here we are not talking about filing an application to cancel the measure suppression and the extension of the investigation period and detention of the accused in custody, these procedural actions relate to the sphere of criminal proceedings). A claim in connection with the actions of an official is filed with the court at the location of the institution where the official works. Representatives of the authorities can file a claim with the court local government or organizations, if they are asked to do so by a person whose rights have been violated. Prosecutors ensure that the powers of representatives provided for in Art. 42 of the Code of Civil Procedure were not violated. The prosecutor should comply with the requirement of the law regarding the one-month period during which the court has the right to accept his statement of claim. The prosecutor also has the right to apply to the court when it is necessary to initiate special proceedings. This form of prosecutorial response to a violation of the law is used in cases where a person is declared missing, a person is recognized as having limited legal capacity due to his abuse of alcohol or drugs, or incompetent due to a mental disorder (Article 29 of the Civil Code of the Russian Federation). At the same time, the prosecutor keeps control over the implementation of court decisions on his claims and statements, and if a positive result is obtained in the effective treatment of alcoholics and drug addicts or if the grounds on which the citizen was declared incompetent have disappeared, the prosecutor raises the question of restoring their legal capacity. One One of the forms of participation of the prosecutor in civil proceedings is the prosecutor’s entry into the dispute considered by the court. He can do this when the person whose interests are to be protected is not competent to bring claims to court himself. This primarily concerns the interests of minors, when it is necessary to resolve the issue of deprivation of parental rights or cancellation of adoption, etc.320 For whatever reason the prosecutor brings a claim, this must be preceded by a comprehensive and thorough preparation of the claim materials; in necessary cases, the prosecutor’s demands must be supported by relevant documents. The form and content of the prosecutor's statement of claim must comply with the requirements set out in Art. 126 Code of Civil Procedure. The application must indicate: 1) the name of the court to which the statement of claim is sent; 2) the name of the plaintiff, his location; 3) the name of the defendant, his place of residence or, if the defendant is a legal entity, his location; 4) the circumstances on which the prosecutor bases his demand, and evidence confirming the circumstances stated by the prosecutor; 5) what is the violation or threat of violation of the rights, freedoms or interests protected by law of the persons protected by the prosecutor and the requirements presented in connection with this; 6) the price of the claim, if the claim is subject to assessment; 7) a list of documents attached to the statement of claim. The application is signed by the prosecutor. The statement of claim is submitted to the court with copies according to the number of defendants. Depending on the nature and complexity of the claim, the court may oblige the prosecutor to provide copies of documents attached to statement of claim .Further activities of the prosecutor are limited to participation in the consideration of the case by the court and support of their claims. The claim brought by the prosecutor must be supported by him in court. However, in a trial, the prosecutor is not bound by his position set out in the statement of claim and the position of the person in whose interests the claim is filed. The prosecutor, as a representative of the body supervising the implementation of laws, in these cases proceeds not from the interests of the plaintiff, but from the requirements of the law. Therefore, if the prosecutor, based on the case materials, comes to the conclusion that the plaintiff’s demands are unfounded, he not only has the right, but is obliged to abandon the claim in whole or in part. However, the prosecutor’s refusal of the claim does not deprive the interested person of the right to demand consideration of the case. During the judicial consideration of the stated claim, the prosecutor is procedurally independent. As a rule, prosecutors support the stated claim, but if, due to the circumstances of the case, it is necessary to abandon the claims, or change the grounds of the claim, or reduce the amount of the penalty, the prosecutor has the right to do this. In these cases, the prosecutor does not need to coordinate his position with the person whose interests he is protecting. The prosecutor gives explanations on the claim brought, presents evidence on the basis of which he considers his justification VIII. Participation of the prosecutor in the consideration by courts of civil cases321 requirements (Article 166 of the Code of Civil Procedure). The prosecutor has the right to submit written documents to the court. When participating in judicial debates, the prosecutor who filed the claim speaks first (Article 185 of the Code of Civil Procedure). Participation of prosecutors in the judicial review of civil cases. The participation of prosecutors in the consideration of civil cases in the courts of first instance is one of the essential guarantees of a comprehensive, complete and objective examination by the court of factual circumstances, as well as the court making a lawful and informed decision. Neither the law nor the Prosecutor General of the Russian Federation oblige prosecutors to take part in every civil case without exception. There is no procedural need for this, since many cases are not particularly complex in their factual aspects, and physically prosecutors cannot cover with their participation all civil cases, the number of which, as mentioned above, is over two million. Law on the Prosecutor's Office ( Art. 35) does not define the mandatory category of civil cases for the prosecutor to participate in, but gives him the authority “to intervene in the case at any stage of the process if required by the protection of the rights and legitimate interests of citizens, society and the state.” The prosecutor has the right to take part in the consideration of any civil case, just as he is obliged to take part in the process if this is considered necessary by the court (Article 41 of the Code of Civil Procedure). In this regard, the court issues a special ruling, which is mandatory for execution by the prosecutor. The civil procedural law provides for a category of civil cases in which the prosecutor must take part. These are cases of special significance that significantly affect the rights and interests of citizens protected by law. Only with the participation of a prosecutor can a court consider a case on declaring a citizen missing or declaring a citizen dead (Article 255 of the Code of Civil Procedure). The court is obliged to consider the case of recognizing a citizen as partially capable or incompetent (Article 261 of the Code of Civil Procedure) with the participation of the prosecutor. In accordance with Art. 70 of the Family Code of the Russian Federation, the prosecutor is obliged to take part in the consideration of a civil case on deprivation of parental rights. In all of these cases, the courts are not required to issue special rulings on the participation of the prosecutor in the trial of the case. The requirements of the law are mandatory for the prosecutor. In accordance with the order of the Prosecutor General of the Russian Federation No. 1 of January 5, 1997 “On the participation of the prosecutor in civil proceedings,” prosecutors are also required to participate in cases of reinstatement at work, eviction without provision of housing, and release of property from arrest. Prosecutors take part in the consideration by courts of cases initiated based on statements and claims of prosecutors. They also participate in the consideration of claims of citizens against the media for the protection of honor and dignity, complaints against the actions of officials and government bodies that infringe on the rights and legally protected interests of citizens. The prosecutor is also obliged to take part in the consideration of cases initiated on his initiative. In cases of other categories, the prosecutor takes part based on their relevance, complexity, public and social significance, the state of law in the district or city. In the whole country, the participation of prosecutors in court is the first authorities is about 15% of total number civil cases considered by courts. In some republics, territories and regions, the participation of prosecutors reaches 40-50%. At the same time, in a number of republics, territories and regions, the participation of the prosecutor in the most important category of civil cases is not always ensured. This is especially unacceptable when it comes to evicting citizens from their homes or reinstating them to their previous jobs. One of the shortcomings in the activities of prosecutors is that some of them, when participating in court, do not actively contribute to the court in a full, comprehensive and objective consideration of the case. At the same time, it is precisely due to the incompleteness or bias of the consideration of the case that the case is canceled in cassation greatest number decisions of the courts of first instance. According to the General Prosecutor's Office of the Russian Federation, on these grounds, about 60% of unjust decisions are reviewed in cassation and supervisory proceedings. By their participation in court proceedings, prosecutors are obliged to prevent violations of substantive and procedural law, while some prosecutors do not always fulfill this duty actively enough . For example, in cases of reinstatement of those dismissed for violations of labor discipline, the applicants’ arguments about the reasons for their absence from work, about transfer without their consent to another job that was not part of their duties under the employment contract, were not always verified with sufficient completeness. In cases of the lifting of disciplinary sanctions, payment of bonuses and other labor disputes, prosecutors did not always assist the courts in thoroughly checking the validity of the plaintiffs’ arguments about the violation of their rights as a result of their filing complaints, statements and speeches of a critical nature. At the same time, it was often not clear what exactly these signals were, what measures were taken on them, how the plaintiff’s work was assessed before and after his critical speech. Prosecutors do not always pay due attention to cases of compensation for harm caused to workers and employees by injury or other damage to health. Some cases in this category are accepted by the courts without checking compliance VIII. Participation of the prosecutor in the consideration by courts of civil cases323 by plaintiffs of the established procedure for preliminary out-of-court resolution of the dispute by the administration, and in cases of disagreement with its decision - by the trade union committee. In a number of cases, decisions in these cases on the degree of disability are made on the basis of the conclusion of a forensic medical examination, whereas one should proceed from the conclusion of a medical and social expert commission. Through his participation in the judicial hearing of the case, the prosecutor provides assistance to the person whose rights and legitimate interests have been violated. He assists the court in their restoration. The participation of the prosecutor in the court hearing is preceded by his familiarization with the case materials. At the same time, the reasons for the statement of claim do not have predetermined force for the prosecutor. In the process of examining evidence, they may disappear or change. A prosecutor participating in the trial of civil cases must verify the competence of the court hearing the case. It should be borne in mind that the law establishes a differentiated procedure for considering cases at first instance and determines the composition of higher courts authorized to check the case in cassation and supervisory procedures. Consideration of civil cases at first instance can be carried out either by a collegial court or by a judge alone. A judge considering a case alone acts on behalf of the court (Article 6 of the Code of Civil Procedure). The prosecutor ensures that the court (judge) is strictly guided by the law regarding the assignment of judges in civil cases of a certain category to sole jurisdiction. The judge alone considers all cases within the jurisdiction of the magistrate (their list is given in Article 113 of the Code of Civil Procedure) in the constituent entities of the Russian Federation where magistrates are not appointed (elected) to the position (Part 2 of Article 114 of the Code of Civil Procedure). From the category of cases related to administrative-legal relations (Article 232 of the Code of Civil Procedure), a judge does not have the right to consider cases on his own regarding complaints about irregularities in voter lists and complaints about the actions of officials infringing on the rights of citizens. This rule also applies to cases of recognition of a citizen as partially capable or incapacitated (Article 24? Civil Procedure Code). If, during a single judge’s consideration of the case, it turns out that it is subject to consideration by the court collectively, the prosecutor submits a petition to transfer the case to the court for consideration in full composition of judges. The right of a judge to consider a case individually is an alternative right: the law does not prescribe, but allows the judge to consider individually a certain category of cases. The prosecutor participating in the trial ensures that the judge in each case ascertains from the parties whether they agree to have the case heard by a single judge. This provision of the law fully applies to the prosecutor, especially when the case is being considered based on his statement of claim. If at least one of the parties objects to the sole consideration of the case, it is considered by the court collectively. Refusal to satisfy the petition filed in this regard is a significant violation of the established forms of civil proceedings and a reason for the prosecutor to file a protest in the case. Cases related to with state secrets. The prosecutor, exercising his powers in civil proceedings, must ensure that these cases - while strictly observing the principle of publicity (Article 9 of the Code of Civil Procedure) - are considered in a closed court hearing. It should be borne in mind that such cases are subject to consideration at first instance by the Supreme Courts of the republics, regional, regional and equivalent courts (Article 115 of the Civil Procedure Code). In all cases, the Supreme Court of the Russian Federation acts as the cassation authority for civil cases of this category Federation. In cases where cases related to state secrets are accepted for trial at first instance by district (city) courts, the prosecutor in the preparatory part of the trial must, referring to the above Law, file a petition to send the case to a higher court. The prosecutor participating in judicial proceedings of civil cases, takes an equally active part in all stages of the proceedings. In the preparatory part of the court session, the attendance of interested parties is checked, the reasons for their absence are established, the opinions of the participants are clarified about the possibility of hearing the case in their absence, in cases provided for by law (Articles 18-24 Code of Civil Procedure), the prosecutor has the right to challenge a panel of judges or a judge, the secretary of a court session, an expert, a translator, a representative of a public organization or a labor collective. If necessary, the prosecutor makes motions. He may file a motion to postpone the hearing of the case if the pre-trial preparation of the case was carried out incompletely or was not carried out at all. The prosecutor properly responds to violations of the law and procedural norms committed during the consideration of the case in court. In a number of cases, courts consider cases in the absence of persons participating in the case, but not notified of the place and time of the court hearing. These and a number of other violations listed in Art. 308 of the Code of Civil Procedure of the Russian Federation, entail the cancellation of the court decision taken in the case. At the court hearing, the prosecutor asks questions to the plaintiff, defendant, third parties, experts, representatives of public organizations - VIII. Participation of the prosecutor in the consideration by courts of civil cases325of organizations and workers' collectives. He submits motions to request new and additional evidence, order an examination, study documents attached to the case, etc. By participating in judicial debates, the prosecutor gives an opinion on the case as a whole. It contains the prosecutor's thoughts on the issues that the court will have to discuss and decide in the deliberation room (Articles 194, 197 of the Code of Civil Procedure). The conclusion as a procedural act emanating from the prosecutor must meet certain requirements. It must be objective, that is, the position of the prosecutor as a guardian of the law must reflect the interests of the person whose rights have been violated, regardless of his procedural position in court. The conclusion must be reasonable, that is, all proposals and conclusions of the prosecutor must be based on the analysis and assessment of specific evidence. It should be complete, and not unambiguous (“I support” or “I do not support the stated claim”). The prosecutor should speak definitely about the fate of the stated claim, and not alternatively, that is, leaving the decision of the claim to the discretion of the court. The conclusion, finally, must be legal, that is, based on the norms of substantive and procedural law.

Participation of the prosecutor in the consideration of civil cases by courts- this is one of the mandatory forms of activity of the prosecutor’s office to protect the constitutional rights and interests of the state and citizens, as well as other rights protected by law. The prosecutor may enter into civil proceedings at any stage if the public interest so requires. The direct participation of the prosecutor in civil proceedings contributes to the objective consideration of civil cases and compliance with procedural and substantive law. In accordance with the Federal Law "On the Prosecutor's Office of the Russian Federation", the prosecutor has the right to apply to the court on the protection of the rights of citizens (who, due to health, age, incapacity and other valid reasons, cannot defend their rights and interests in court), an indefinite number of persons (refugees, internally displaced persons, persons affected by man-made and radiation disasters, orphans and children left without parental care), as well as the Russian Federation, constituent entities of the Russian Federation, municipalities. When filing an application, the prosecutor enjoys all the procedural rights and procedural responsibilities of the plaintiff (gets acquainted with the case materials, submits motions and challenges, reviews and examines all material evidence in the case, has the right to appeal the action of the bailiff), except for the right to enter into a settlement agreement and the obligation to pay state duty. The prosecutor may refuse a statement filed in defense of another person, but the consideration of the case continues; if the plaintiff or his representative refuses the claim, the court terminates the proceedings. According to Art. 45 of the Code of Civil Procedure of the Russian Federation, the prosecutor enters into the process to give an opinion about eviction, reinstatement at work, about compensation for harm caused to the life or health of a citizen. The prosecutor has the right to appeal court decisions in the court of appeal in the form of an appeal presentation, in the court of supervisory instance in the form of a supervisory presentation, and in the court of cassation with a cassation presentation, if he participated in this case in the court of first instance. The Prosecutor General has the right to apply to the Plenum of the Armed Forces of the Russian Federation with a request for the court to provide clarifications on the practice of civil cases. Direct work in the prosecutor's offices of districts and cities is carried out by certain employees - deputies and assistants. In the prosecutor's offices of the constituent entities there are departments called departments to ensure the participation of the prosecutor in civil proceedings. The General Prosecutor's Office provides explanations and guidelines to lower-level prosecutors (information letters). The participation of the prosecutor is mandatory when considering an adoption case in a closed court session, when a citizen is declared incompetent, about forced hospitalization in a psychiatric hospital, or about extending the period of forced hospitalization.