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RESOLUTION OF THE CONSTITUTIONAL COURT OF THE RUSSIAN FEDERATION

of April 21, 2010 No. 10-P

On the case of check of constitutionality of part one of Article 320, parts two of Article 327 and article 328 of the Civil Procedure Code of the Russian Federation in connection with claims of the citizen E. V. Aleynikova and Rub To limited liability company and requests of the Norilsk city court of Krasnoyarsk Krai and the Central district court of the city of Chita

On behalf of the Russian Federation

Constitutional court of the Russian Federation as a part of the chairman - the judge M. I. Kleandrov, judges Yu. M. Danilov, L. M. Zharkova, G. A. Zhilin, V. D. Zorkin, S. M. Kazantsev, A. N. Kokotov, N. V. Melnikov, N. V. Seleznyov,

with participation of the representative citizen E. V. Aleynikova - the lawyer D. A. Bogatov, the judge of the Central district court of the city of Chita A. V. Makartsev, the permanent representative of the State Duma in the Constitutional Court of the Russian Federation A. N. Kharitonov, the representative of the Federation Council - the doctor of jurisprudence E. V. Vinogradova,

being guided by Article 125 (part 4) Constitutions of the Russian Federation, Item 3 parts one, parts three and the fourth Article 3, Item 3 parts two of Article 22, Articles 36, 74, 86, 96, 97, 99, 101, 102 and 104 Federal constitutional laws "About the Constitutional Court of the Russian Federation",

considered in open session case on check of constitutionality of part one of Article 320, of part two of Article 327 and Article 328 GPK of the Russian Federation.

Reason for consideration of the case were claims of the citizen E. V. Aleynikova and Tri K LLC, and also requests of the Norilsk city court of Krasnoyarsk Krai and the Central district court of the city of Chita. The basis to consideration of the case was the found uncertainty in question of whether there correspond Constitutions of the Russian Federation the provisions of the Civil Procedure Code of the Russian Federation challenged by applicants.

Having heard the message of the judge-speaker L. M. Zharkova, explanation of the parties and their representatives, speeches of the representatives invited in meeting: from the Ministry of Justice of the Russian Federation - V. V. Karpova, from the Prosecutor General of the Russian Federation - T. A. Vasilyeva, having researched the submitted documents and other materials, the Constitutional Court of the Russian Federation established:

1. In the addresses to the Constitutional Court of the Russian Federation applicants on this case - the citizen E. V. Aleynikova, Tri K LLC, the Norilsk city court of Krasnoyarsk Krai and the Central district court of the city of Chita dispute constitutionality of following provisions of the Civil Procedure Code of the Russian Federation:

parts one of article 43 about attraction to participation in case of the third parties who are not declaring independent requirements concerning matter in issue, their procedural law and obligations;

Article parts one 320, providing that decisions of magistrate judges can be appealed in appeal procedure by the parties and other persons participating in case in the relevant district court through the magistrate judge;

Article parts two 327, determining that consideration of the case by Appeal Court is conducted by rules of production in Trial Court;

Articles 328, the petition for appeal providing in number of powers of Appeal Court by consideration, representation leaving of the decision of the magistrate judge without change, claims, representations - without satisfaction; change of the decision of the magistrate judge or its cancellation and adoption of the new decision; cancellation of the decision of the magistrate judge completely or in parts and the termination of judicial proceedings or leaving of the statement without consideration.

1.1. The decision of the magistrate judge of October 3, 2007 according to the action of rescission of scrap and the Section of property to the possession of the claimant transferred property which, according to the citizen E. V. Aleynikova who is not involved in consideration of the case - the defendant's mother, belonged to it. Given to E. V. Aleynikova on February 4, 2009 the statement for recovery of term for submission of the petition for appeal, the petition for appeal and the petition for attraction it to participation in case in quality of the third party were returned by the magistrate judge with reference to the fact that owing to Article 320 GPK of the Russian Federation she is not person participating in case.

The decision of the magistrate judge of December 12, 2007 satisfied the claim of the citizen B. to the citizen To. about recognition of the property right to the parcel of land. 320 GPK of the Russian Federation by the determination of the magistrate judge of July 28, 2008 left without change by higher degrees of jurisdiction were refused adoption of the petition for appeal of Tri K LLC which is not recruited in consideration of the case believing that it possesses the right of permanent (termless) use of this parcel of land based on Article.

The citizen E. V. Aleynikova and Tri K LLC claim that Article part one 320 GPK of the Russian Federation does not correspond to Articles 19, of 46, 47 and 123 Constitutions of the Russian Federation in that measure in what does not allow to appeal in appeal procedure the court decree to persons who are not recruited in case, question of the rights and about which obligations it is permitted in this court decree.

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