In the framework of civil production, there is often a need to involve an expert. Legislation establishes the duties and rights of this specialist. They are set out in Art. 85 ГПК the Russian Federation. Rights and duties of a person acting in the status of an expert are mutually conditioned. In this regard, the legislator not only reinforced them in one article, but also pointed to a real link between them. Consider further art. 85 ГПК the Russian Federation with comments 2016 in
As indicated by Art. 85 ГПК the Russian Federation, the specialist must:
P. 2 tbsp. 85 CCP RF special rules for the specialist are established.In particular, if the issues before him are beyond the scope of his competence, documents and materials are insufficient or unsuitable for research and drawing up conclusions, the expert should send to the instance that appointed the procedure a motivated message about the impossibility of making substantiated and objective conclusions. Notification must be in writing. The specialist is obliged to ensure the safety of the information transferred to him. He must return the examined documents and materials to the court with the enclosure of a conclusion or a notification that it can not be given.
If the expert does not fulfill the requirements of the instance,appointed in accordance with the established procedure, in the time specified in the court ruling, in the absence of a reasoned notification that it is impossible to carry out the investigation in due time for the reasons given above, to the head of the competent institution in whose staff the person is composed, or directly to the guilty person himself, a fine . The amount of recovery is up to 5 thousand rubles.
How to fix Part 2 of Art. 85 CCP RF, the expert is not allowed to:
Specialist and institution performingresearch, can not refuse to conduct a study within a time limit determined by the court, because the party refuses to pay before the examination. In this case, competent persons (institutions) should proceed as follows. They perform the research, draw up a conclusion and a statement of compensation for the costs incurred. These documents are sent to the court with materials confirming the expenses. The authority that appointed the examination solves the question of compensation for costs, taking into account the rules, Articles 98 and 96 of the Code.
Art. 85 p. 3 of the Code of Civil Procedure of the Russian Federation indicates that the expert, to the extent that it is required to draw up an opinion, may:
As the norm indicates, a specialist attractedthe court for examination, on the one hand, has the right to get acquainted with the materials of the dispute, ask for additional information, ask questions to witnesses and participants during the hearing, This is necessary to draw up an objective and reasonable conclusion. On the other hand, the expert has a number of obligations. He must take on the commission of the court, carry out the research, answer the questions properly, ensure the safety of the materials, come to the meeting on the agenda. It is worth mentioning that the earlier Code did not put such strict regulations. In particular, the giving of an opinion was considered as an opportunity, and not an obligation of the expert. The former Code allowed the refusal to compile it without any additional explanation.
Art. 85 CCP RF obliges the expert to send a motivated message to the court about the reasons why he can not give an opinion on the materials examined.
In connection with the fact that in a number of cases procedural obligations are determined by direct prohibitions, in part two Art. 85 CCP RF It is established that the specialist can notto be independent in the collection of materials, to interact with the participants in the dispute, to disclose information that is known to him in the performance of his professional tasks and to report on the results of the research. Such prescriptions are justified. The commission of any of the actions listed above can affect the comprehensiveness and objectivity of the research, as well as affect the interests of participants and other persons. The duties and rights of the expert in sectoral Federal Law No. 73 are most fully reflected. In the normative act it is additionally noted that the specialist can not destroy, significantly change the characteristics of the objects of research without the consent of the body or the entity that appointed the procedure. As for the disclosure of information, the law specifically emphasizes that among all the data, a particular place is occupied by information capable of limiting the constitutional right of citizens, constituting a commercial, state and other protected secret.
Particular attention is paid in legislation to the duty of the expert to send an opinion within the period specified in the judicial order on the designation of the study. The rule established Art. 85 CCP RF, is associated with changes in part one of Article 80Of the Code. At present, the expert must carry out the investigation and send the conclusion taking into account the period specified by the court of general jurisdiction in the ruling. But a specialist or institution that conducts the investigation of the case materials can provide the court with a reasoned notification that it is impossible to conduct the procedure in a timely manner, because of the issues raised beyond the competence or in connection with the insufficiency / unsuitability of the facilities. If the deadlines specified in the resolution are not met, and if there is no notice, the person is fined.
Currently, the law prescribes to the expertDo research even if there is no preliminary payment by the parties. This rule eliminated existing problems in practice. Before making changes in the legislation, experts refused to perform the research, because the participants could not pay for it. As a result, production was suspended for a fairly long time, which, of course, is unacceptable for the normal administration of justice. Today, all costs incurred by the expert in carrying out the research in the absence of payment by the parties are subsequently compensated to him by the decision of the instance that appointed the procedure.
