Материал: disser_arhipov
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seem absurd, contrary to both the basic principles of law in general and the procedural rules established by the CAV».301
Here the argument referring to the absurdity is connected with violation of legal logic and distribution of objects between different branches of law specially created – each of them for its own subject (in administrative proceedings the application of the Civil Procedural Code of the Russian Federation and the Arbitration Procedural Code of the Russian Federation is indeed impossible by definition and therefore absurd, although in theory it is possible to construct rare borderline situations where a reasonable dispute about it may arise).
6) In the Appellate Ruling of the Perm Kray Court of 02.04.2013, Case No. 33– 2961–2014 the court notes that
«the arguments of the defendant’s appeal that the plaintiff, while carrying out his work at the factory, deliberately allowed the occurrence of adverse health effects, do not lead to a reduction in the employer’s liability to employees and are absurd in nature».302
In this case, “absurdity” seems to arise due to the mixing of two completely different groups of social relations which are not legally related to each other – the activity of the employee, which caused him harm on the one hand, and the performance of the public-law obligation of the employer, which in itself does not depend on what the employees do.
7) An interesting conclusion is contained in the Appellate Ruling of the Perm Kray Court of 12.11.2012, Case No. 33-10042:
«[t]he grounds for appealing that, in N.’s opinion, the defendant’s status itself causes moral suffering that are not subject to being proved, are absurd and cannot be taken into account from a legal point of view».303
301See: Decision of the Samara Oblast’ Court of 26.06.2014 No. 21–311/2014 [Electronic resource]. – Access from the legal reference system «ConsultantPlus» (accessed: 31.01.2019).
302See: Appellate Ruling of the Perm Kray Court of 02.04.2013, Case No. 33–2961–2014 [Electronic resource]. – Access from the legal reference system «ConsultantPlus» (accessed: 10.01.2019).
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The example of absurdity in this case is more interesting because it is more abstract and affects unarticulated “generally shared assumptions” of law, which imply that the existence of a legal status, especially a procedural one, is instrumental and cannot itself cause moral suffering.
8) As indicated by the court in the Appellate Ruling of Samara Oblast’ Court of 11.09.2012, Case No. 33-8461,
«the judicial panel cannot find convincing the arguments of the appeal that the defendant can not be held responsible for the actions of its counterparties due to the fact that he acted in good faith, exercising due diligence and caution, because the opposite is evidenced by the very circumstances of the conclusion of contracts with unidentified persons on behalf of “Forsazh” LLC, namely, large-scale transactions (usually in amounts exceeding one million Rubles), according to the defendant himself, they were made in cars at the parking lot, and the defendant did not provide the court with the passport details of the persons who concluded the transactions on behalf of “Forsazh” LLC, nor the power of attorney on the basis of which they acted, however, the defendant does not actually dispute that I.V., the nominal manager of “Forsazh” LLC, did not make the specified transactions personally, the arguments of the defendant’s party that it is normal practice to enter into large-scale transactions in such circumstances are absurd in essence, since due to such circumstances it is impossible to establish the true counterparties to the transactions, the true terms of the transactions and the fact that the defendant has fulfilled these conditions».304
The description given by the court clearly explains the “principle of absurdity” in this case – before qualifying something as a large-scale transaction, it must correspond to the attributes of the transaction as such.
9) The Appellate Ruling of the Perm Kray Court of 08.08.2012, Case No. 33-6866 on the case of the defendant’s infliction of harm on the official car under the influence of alcoholic intoxication states that
303See: Appellate Ruling of the Perm Kray Court of 12.11.2012, Case No. 33–10042 [Electronic resource]. – Access from the legal reference system «ConsultantPlus» (accessed: 10.01.2019).
304See: Appellate Ruling of the Samara Oblast’ Court of 11.09.2012, Case No. 33–8461 [Electronic resource]. – Access from the legal reference system «ConsultantPlus» (accessed: 10.01.2019).
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«in the appeal, Sch. gives arguments about disagreement with the court’s conclusion that he was driving under the influence of alcohol, citing the fact that the certificates N <...> and <...> on the results of forensic chemical research are not approved by the seal of the medical institution, and therefore are inappropriate evidence. It is further pointed out that alcohol could have entered the defendant’s blood during the treatment of wounds by medical staff. With regard to the latter, the court has already stated that the defendant’s references to the circumstances in which alcohol may have entered Sch.’s blood are absurd and cannot be taken into account».305
Here it is clear that such references are contrary to the normal state of affairs and the facts of medical science, at least in the court’s understanding.
10) As indicated by the judicial panel in the Appellate Ruling of Samara Oblast’ Court of 26.06.2012, Case No. 33-5960,
«at the same time, the judicial panel cannot recognize as convincing conclusions of the court of first instance on the conclusion of the considered contract of the loan for the purpose of excluding of apartment got by the defendant under the specified contract of share participation in building of an apartment house from possible section of the jointly acquired property of the defendant and his wife as all money sums of the defendant have been paid to the builder before the conclusion of the contract of the loan, that is to DD.MM.YYYY, and the marriage between the defendant and his wife has been concluded only on DD.MM.YYYY, and considering that the defendant has a higher legal education, the arguments put forward by the defendant in support of the non-recognition of the claim look absolutely absurd».306
In this case, absurdity is linked to the presumed reasonableness of the conduct of a person with a law degree. This case of “absurdity” differs from others in that it states that a party to the case cannot state a certain argument “seriously” because it has special knowledge.
11) In the Resolution of the Presidium of the Supreme Court of the Republic of Mordovia of 19.04.2012, № 44-g-7, the court indicates:
305See: Appellate Ruling of the Perm Kray Court of 08.08.2012, Case No. 33–6866 [Electronic resource]. – Access from the legal reference system «ConsultantPlus» (accessed: 10.01.2019).
306See: Appellate Ruling of the Samara Oblast’ Court of 26.06.2012, Case No. 33–5960 [Electronic resource]. – Access from the legal reference system «ConsultantPlus» (accessed: 10.01.2019).
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«However, the decision of the Chamzinskiy District Court of the Republic of Mordovia of November 8, 2011 cannot be recognized as fully legal and justified, because, having refused to satisfy all the counterclaims filed by Avtozapchast LLC against O. in connection with the expiration of the limitation period, the court essentially left the dispute between the parties
regarding the countersinking machine unresolved, creating an absurd situation where the machine was not owned by the owner».307
In this case, “absurdity” is of a different nature than in previous examples – here we are talking about a situation that is logically impossible from the point of view of positive law.
12) An entertaining conclusion is reflected in the Appellate Ruling of the Kaliningrad Oblast’ Court of 14.08.2013, Case No. 33-3468/2013:
«Given that the law does not limit the number of things that can be owned by a citizen, the reference in the appeal to the absurdity of the conclusion of the court that the debtor LV with his wife owns two refrigerators and two TV sets cannot be recognized as justified».308
Apparently, the party to the case tried to appeal to the usual state of affairs, when the citizens living in together in one place, own just one refrigerator and one TV set. In the court’s reasoning, however, the comparison, unlike in previous cases, is not made with the usual practice (in many cases the family does have one refrigerator – as common sense suggests – but it also suggests that this is not necessary so), but with the principles of civil law, which do not limit the number of refrigerators and TV sets that citizens can own.
13) In the Appellate Ruling of the Supreme Court of the Republic of Karelia of 14.05.2013, Case No. 33-1306/2013 the court reasonably notes that
307See: Resolution of the Presidium of the Supreme Court of the Republic of Mordovia of 19.04.2012 No. 44–g–7 [Electronic resource]. – Access from the legal reference system «ConsultantPlus» (accessed: 31.01.2019).
308See: Appellate Ruling of the Kaliningrad Oblast’ Court of 14.08.2013, Case No. 33–3468/2013 [Electronic resource]. – Access from the legal reference system «ConsultantPlus» (accessed: 10.01.2019).
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«the indication in the appeal of cynicism and absurdity of the conclusions of the court of first instance is expressive in nature and may not be regarded by the court board as a reasoned argument to be considered as a position of a legal entity».309
The point of this example is not so much to show exactly what the alleged absurdity was, but that the court here is de facto indicating that the reference to absurdity itself cannot be taken into account in the administration of justice. As can be seen, however, this is not a universal position.
14) Saint Petersburg City Court in its Ruling No. 22-2281/2012 of 18.04.2012, refuting one of the arguments of the party, notes that
«contrary to the arguments of G.D.’s cassation appeal about the absurdity of the information received by the court about the impossibility of establishing the whereabouts of a witness who is a police officer, the case file contains a document on dismissal from the internal affairs bodies and about the absence of this witness according to the available data about his place of residence».310
This example is similar to the first one, but with the opposite result – if it is impossible or practically impossible to serve a sentence in a detention facility anonymously, then getting out of the state’s focus while being outside of prison is quite possible. At least until the Internet of Things in the field of public order has become truly global.
Special attention should be paid to the use of references to absurdity in dissenting opinions of judges of the Constitutional Court of the Russian Federation.
15) Thus, for example, in the Dissenting Opinion of the judge of the Constitutional Court of the Russian Federation S.M. Kazantsev to the Decision on the case about check of constitutionality of Item 1 Part 3 Article 81 and Article 401.6 of the Criminal Procedural
309See: Appellate Ruling of the Supreme Court of the Republic of Karelia of 14.05.2013, Case No. 33–1306/2013 [Electronic resource]. – Access from the legal reference system «ConsultantPlus» (accessed: 10.01.2019).
310See: Ruling of the Saint Petersburg City Court of 18.04.2012 No. 22–2281/2012 [Electronic resource]. – Access from the legal reference system «ConsultantPlus» (accessed: 31.01.2019).