Forensic expertise in the civil and arbitration process: theoretical and procedural aspects. Forensic examination - the main form of use of special knowledge in civil proceedings

In the socio-economic conditions of modern Russia in civil proceedings, the role of special knowledge increases substantially, which is primarily due to the need to objectify the process of proof, ensure the protection of property and non-property rights and legal interests of an individual. In addition, the integration and differentiation of scientific knowledge that occurs at the present stage of the scientific and technological revolution provides the possibility of using all the new achievements of modern science in proving.

Special knowledge in the process of civil proceedings can be used both in procedural form, when the results of their application are of evidentiary value, and in non-procedural form.

Among the types of procedural use of special knowledge in civil proceedings, forensic examination is fundamental, the essence of which is analysis by court definition by a competent person - an expert - material objects of examination (material evidence) put at his disposal, as well as various documents to establish factual data value for proper case resolution. According to the results of the study, the expert draws a conclusion, which is one of the statutory evidence. The main carrier of special knowledge according to the Code of Civil Procedure, AIC is an expert who uses his special knowledge in procedural form in the production of forensic examination.

In the civil process there is another type of procedural application of special knowledge. According to Art. 188 CCP, when necessary, when examining written or physical evidence, playing audio or video recordings, appointing an examination, interrogating witnesses, taking measures to secure evidence, the court may involve specialists to get advice, explanations and provide direct technical assistance (photographing, drawing up plans and schemes , sampling for examination, property valuation). Specialist consultations are given orally or in writing based on professional knowledge, without conducting special studies. It should be noted that the consultation of a specialist, given in writing, is announced at the court session and is attached to the case, and the consultations and explanations of the specialist, given orally, are recorded in the minutes of the court session. In order to clarify or supplement the consultation, the specialist may be asked questions.

The judge, possessing special knowledge and appropriate scientific and technical means, in principle, can do without the help of a specialist, but this is a hypothetical case rather than a real one. At the same time, the law explicitly states that the teacher should be involved in the interrogation of a witness under the age of 14 years (Article 179 of the Code of Civil Procedure).

Although the AIC does not contain articles directly describing the participation of a specialist in the consideration of cases, but it is assumed that there are indirect indications of the possibility of such participation in them. First of all, this may involve the use of technical means and special knowledge in the production of inspections and research of written and physical evidence at the place of their location (Art. 78, 79 APC), presentation of evidence (Art. 64, 65 APC). But still I want to complain about the lack of a specialist figure in the AIC. Representatives of the parties still refer to the knowledgeable persons, since life dictates its own rules. The results of such non-procedural applications are written opinions and petitions for summoning a competent person to the arbitration court.

An analysis of the practice shows that in some cases the court, on its own initiative or at the request of the other party, refuses to interrogate knowledgeable persons precisely on the grounds that there is no such procedural figure as an expert in the AIC. In this case, the conclusion may even be attached to the case as written evidence. In other cases, a knowledgeable person is questioned in court as a witness, which may also cause objections from the other party. Obviously, the appearance of a specialist figure in the arbitration process will contribute to the objectification of the evidence process. We illustrate this with an example.

Attorney's request, made on the basis of p. Zet. 6 of the Federal Law of May 31, 2002 No. 63-FZ "On advocacy and advocacy in the Russian Federation", an expert in procedural law, theory and practice and forensic examination made an analysis of the opinion of the forensic economic examination appointed by the definition of the Moscow Arbitration Court business number XXX and executed by employees of JSC "NKG".

The expert was invited to express his opinion on the following issues:

1. Have the requirements of the legislation regulating the forensic expert activity, recommendations developed by procedural science and the general theory of forensic examination been observed in the course of conducting a forensic economic examination?

2. Have the answers to all the questions formulated in the resolution been obtained as a result of the examination?

3. Are the conclusions of the expert grounded, are these conclusions based on the studies made by the expert, as required by law and the general theory of forensic examination? Does the expert's opinion, as evidence, meet the requirements of relevance, admissibility and authenticity imposed by the procedural law on evidence?

In his conclusion, the specialist indicated the following. As follows from the definition of the Moscow Arbitration Court in case No. XXX, two questions were raised for the resolution of the forensic economic examination:

1. What is the market value of 3100 shares of Sonata OJSC as of March 2004, constituting 51% of the total number of shares, at the time of the conclusion of the contract of June 14, 2000?

2. What is the market value of one share of Sonata OJSC as of March 2004?

Thus, the first question concerns the market price of 3,100 shares of the boarding house as of March 2004, which accounted for 51% of the total number of shares at the time of the conclusion of the contract of June 14, 2000. With this corresponds the second question about the market price of one share of the boarding house as of March 2004.

The specialist notes that according to Part 2 of Art. 55 APC expert must give an objective opinion on the issues raised. In the comments to APC2, it is expressly stated that "the main procedural duty of the expert is to give an objective conclusion on the questions that are put to him". The same position is held by the legislator in Art. 16 of the Law on Forensic Expertise, which states that the expert is obliged to "... give a reasonable and objective conclusion on the questions put to him." Neither the agro-industrial complex, nor the law, the forensic expert does not have the right to reformulate the questions submitted for its resolution. He can only apply to the arbitration court for additional materials.

However, in this case, the experts violated the above norms of federal legislation and reformulated the questions, which automatically led to a change in the meaning. If the wording of the question given by the court (the parties have not objected to this wording), it follows that the court is interested in the market price of 3,100 shares of Sonata OJSC as of March 2004, but it is argued that these 3,100 shares accounted for 51% of the total number of shares, at the time of the conclusion of the contract of June 14, 2000, the wording of this question, given in the expert opinion, very important detail "accounted for 51% of the total number of shares, at the time of conclusion of the contract of June 14, 2000 ", has been omitted. Thus, the meaning of the question completely distorted. Noting a very significant part of the question posed by the court, the experts, without any argument, unfoundedly substitute concepts. They equate the market value of 3,100 ordinary registered shares of Sonata OJSC as of March 2004 to the market value of shares, which constitute 51% of the total number of shares as of March 2004. Thus, it is virtually without proof that 3,100 shares of OJSC are Sonata "as of March 2004 constituted 51% of the total number of shares, although no allegations that as of March 2004 3,100 shares of the boarding house accounted for 51% of the total number of shares, the court’s decision on the appointment of a judicial economic examination is not contained.

On this unproven basis in the future, all expert opinion is built. The distorted answer to the first question automatically entails and the distorted answer to the second.

Further, the experts in violation of Art. 16 of the Law on Forensic Expertise, which declares the need for a full study of the objects and materials of the case submitted to the expert, did not examine without explanation the documents directly related to the market value of 3,100 Sonata shares and the market value of one of its shares as March 2004, i.e. to questions formulated by the court.

The attention of the experts of the regional office in the Central Federal District of the Federal Commission for the Securities Market of February 4, 2004 on state registration of the securities issue, according to which the State Department issued the Federal Branch of the Federal Securities Commission of Russia on February 3, 2004, was left unattended registration of ordinary registered uncertified issuer shares - Sonata OJSC by closed subscription in the amount of 199,980 pieces and assigned to this issue state registration number ХХХ-000. Considering that 6060 shares of Sonata OJSC were already registered earlier, the total number of its shares registered in the established procedure as of March 2004 was 206,040. As seen from the expert opinion, the order of the state body - the Regional Branch of the Federal Securities Commission of Russia in the Central Federal District of 03.02.2004 has not been canceled and, up to the present, is valid as an act of a state body generating civil rights and obligations.

Thus, at the time of determining the market value (as of March 2004), 3,100 shares in relation to the total number of registered ordinary shares of Sonata OJSC in the amount of 206,040 were not 51%, but 1.5% of total number of registered shares. This entails a significant reduction in market value as a 1.5% stake to 3,235,705.9 rubles. (113,416.9 US dollars) and one share up to 1043.8 rubles. ($ 36.6), respectively.

Since the conclusion was carried out by several experts - it automatically falls under the signs of a judicial commission conclusion (a commission of experts of one specialty) or a complex (commission of experts of different specialties) examination - art. 21-23 of the Law on Forensic Expertise, as well as Art. 84, 85 apk. But in the definition of the Moscow Arbitration Court of January 14, 2005 in case No. A40-9738 / 04-34-126, the examination is not appointed to the experts, but to the expert. Note that according to Part 1 of Art. 84 AIC commission nature of the examination determined by the arbitral tribunal. Since the comprehensive examination according to the Law on Forensic Expert Activity is an examination carried out by a commission of experts of different specialties, i.e. complex examination is necessarily commission, such examination is also appointed only by the arbitral tribunal.

But even if the appointment of a comprehensive or commission examination was legitimate, the text itself does not hold water. The fact is that the conclusion does not specify what kind of research each of the experts made, did they come to a common opinion? The opinion is not issued as an opinion of judicial experts, but as a report on valuation activity. Instead of expert signatures at the end of the conclusion there is a signature of the head of the company.

In the expert opinion there is evidence to suggest that the research part of the conclusion contradicts the conclusions of the experts. However, according to Art. 25 of the Law on Forensic Expertise such contradictions should not be. So, for example, in the research part of the report (tab. No. 34) it is stated that the cost of 100% of the equity capital of Sonata OJSC amounts to 249,080,000 rubles, which according to the ruble exchange rate adopted by the experts in relation to $ 1 is 28.5293 rub. amounts to $ 8,730,673.

The conclusions made by the experts do not correspond to the research themselves. The conclusions of the experts state that the cost of one share of Sonata OJSC is 35,488.39 rubles. (or $ 1243.93). If this amount is multiplied by 6060 shares, then the value of 100% of the equity capital of Sonata OJSC should be 215,059,643.40 rubles. (7,538,202.60 US dollars), and not 249,080,000 rubles. ($ 8,730,673), as indicated in the research section of the report.

If we take into account the total number of registered shares as of March 2004 - 206,040 pieces and multiply this number by the value of one share, which is in the conclusions of the expert opinion as 35,488.39 rubles. (or 1243.93 US dollars), then the cost of 100% of the equity capital of Sonata OJSC will be 7,322,027,875.60 rubles. (seven billion three hundred twelve million twenty-seven thousand eight hundred seventy-five and 0.6 rub.) or $ 256,298,888.36 (two hundred fifty-six million two hundred ninety-eight thousand eight hundred eighty-eight and $ 0.36), which is almost 30 times the cost of 100% of the equity capital of Sonata OJSC according to the research part of the report.

In conclusion, there is a discrepancy between the data and simply arithmetic errors that are unacceptable in such a serious study.

1. Compare the data in the section "Adjustment at the time of sale" in the table. A "Calculation of the adjustment at the time of sale" and table. B "Calculation of the market value of 1 ha of land owned by Sonata OJSC".

In table A

2. Land tax on the plots is set at 51.84 kopecks. per m2. At the same time, 51.48 kop is assumed in the calculations.

3. In the expert's opinion, there are numerous arithmetic errors, for example, 181,514–181,514 x 20% - 1999 = 152,761 (according to the expert’s calculation, the result of this expression is 143,212.2).

Based on the above, the expert came to the following conclusions:

1. During the production of a forensic economic examination, the requirements of Art. 55, 82-85 of the APC and art. 14, 16, 17, 21-23, 25, 41 of the Law on Forensic Expert Activities, which regulate expert activities, did not take into account the recommendations on the production of forensic examinations developed by procedural science and the general theory of forensic examination, tested by expert practice.

2. The wording of the first question put forward in the court’s ruling on the resolution of a forensic economic examination, was arbitrarily changed by experts, which led to a distortion of their meaning and substitution of concepts. On this basis, in the future, the entire expert opinion is built, which led to erroneous conclusions on the second question, which is closely related to the first one.

3. In the expert opinion made by the employees of JSC "NKG", there are serious violations of both procedural and substantive nature, inaccuracies and gross arithmetic errors in the calculations.

According to the expert, the answers to the questions put by the court can be given during the production of a repeated commission of judicial and economic expertise.

Having received this expert opinion, the lawyer applied for the expert to be summoned to the court hearing. The court rejected the petition on the grounds that there is no specialist figure in the AIC. In this case, the conclusion itself was attached to the case file as written evidence.

In such a decision is difficult to find logic. It only led to a delay in the process, since later on, on the basis of the above written evidence, a second commission examination was appointed.

Forensic examination is appointed regardless of whether the judge has special knowledge, since the actual data obtained through expert research can not be reflected in any procedural document, except for the expert opinion.

Non-procedural forms of use of special knowledge is the reference and consulting activities of a specialist, for example, before the commencement of the proceedings. In this form, the specialist can give advice to lawyers, because according to the sub. 4 p. 3 Art.6 of the Federal Law No. 63-FZ of May 31, 2002 “On Advocacy and the Bar in the Russian Federation”, a lawyer has the right to engage specialists on a contractual basis to clarify issues related to the provision of legal assistance. The production of non-judicial examinations and research also relates to the non-procedural form of applying special knowledge.