Comments In English_case 2-402-98

Table 2. The list of findings of fact (1st instance 'The Court has found that … », 2nd instance « The Court's conclusion is supported by the following findings of fact…') Main fact Found in the 1st instance

Found in the 1st instance

Found in the 1st instance

Found in the 1st instance

Found in the 1st instance

Found in the 1st instance

Additional finding of 1st order

Additional finding of 2nd order NA

Rebuttal of the finding NA

Violation committed in the finding of fact NA

Apellate opinion Moscow City Court parties were married from 1985 to 16/12/97,

Objection

E.V. Lapardina and G.S. Lapardin were lawfully married from January 5th, 1985 to December 16th, 1997 (docket sheets nos. 6, 47).

NA

they had two children from the marriage: A.G. Lapardina, born in 1988, and A.G. Lapardina, born in 1993 . From 1991 to 1995 the Lapardin's family resided in a two rooms flat at the address: Moscow street Milashenkova, no. 19, app. 77

NA

NA

NA

NA

NA

NA

NA

NA

NA

NA

from 1991 to 1995 they and two minor children resided in an apartment at the address: Moscow, Milashenkova street, no.19, app.77, which they were registered in as residents (docket sheets nos.12, 13)

NA

On 02/17/95 E.V. Lapardina with children have been re-registered to her mother in a two rooms flat at the address: Kantemirovskaya street, no.8, building 1, app.282. (docket sheet no.23) On 03/24/95 G.S. Lapardin was reregistered to his mother-in-law in the flat at the above address. (docket sheet no.23) On April 25th, 1995 G.S. Lapardin sold the flat at the address: street Milashenkova, no. 19, app.77 for 26,361,923 roubles (docket sheet no.48)

NA

NA

The term 're-registered' doesn't exist. Registration, deregistration are made at the place of residence, hence the essense of the evidence is change of defendant's tenancy.

Incomplete finding, which conceals the fact that the claimant with children had changed residence

In February 1995 the claimant with children have been re-registered to the plaintiff's mother apartment.

Incomplete finding, which conceals the fact that the claimant with children had changed residence

NA

NA

Incomplete finding, which conceals the fact that the defendant had changed residence

In March 1995 the defendant was reregistered to the plaintiff's mother apartment.

NA

NA

The term 're-registered' doesn't exist. Registration, deregistration are made at the place of residence, hence the essence of the finding is the change of defendant's residence. The copy of the sale contract bears the plaintiff's written consent to the apartment sale (docket sheet no.48)

Incomplete finding

On 04/25/95 the defendant sold mentioned apartment with the consent of guardianship authority. the defendant sold mentioned apartment for the purpose of buying another apartment.

Supervisor's opinion 1 Moscow City Court

NA

Objection NA

E.V. Lapardina and G.S. Lapardin were marrieв from 06/01/1985 to 16/12/1997. together with E.V. Lapardina the defendant lived till 04/26/1997 (docket sheet no. 79) From the marriage you had two minor children.

Supervisor's opinion 2 Supreme Court RF E.V. Lapardina and G.S. Lapardin were married from 1985 to December 1997.

Objection NA

family breakdown from April 1997

NA

NA

NA

From 1991 to 1995 the plaintiff, you and two children were registered at and resided in, an apartment at the address: the city of Moscow, Milashenkova street, no.19, app.77. in February 1995 the claimant and children were registered at the plaintiff's mother apartment.

NA

NA

NA

Incomplete finding, which conceals the fact that the claimant with children had changed residence

NA

NA

Incomplete finding, which conceals the fact that the defendant had changed residence

In March 1995 the defendant was registered at the plaintiff's mother's apartment.

Incomplete finding, which conceals the fact that the defendant had changed residence

NA

NA

Misrepresentation of the fact of a case. In the sale contract (docket sheet no. 48) this consent is not mentioned. No consent of guardianship authority is required for sale of apartment, if it is free of registered residents.

On 04/25/1995 the defendant sold the apartment in the Milashenkova street with the consent of guardianship authority

Misrepresentation of the fact of a case. In the sale contract (docket sheet no. 48) this consent is not mentioned. No consent of guardianship authority is required for sale of apartment, if it is free of registered residents.

NA

NA

Misrepresentation of the fact of a case. In the sale contract (docket sheet no. 48) the purpose of sale is not mentioned. There are no other admissible proof of the purpose of sale.

on 04/25/1995. the defendant sold the apartment in the Milashenkova street for the purpose of buying another apartment.

Misrepresentation of the fact of a case. In the sale contract (docket sheet no. 48) the purpose of sale is not mentioned. There are no other admissible proof of the purpose of sale.

Found in the 2nd instance

NA

NA

NA

NA

NA

the claimant issued to the defendant the power of attorney dated 05/03/95 to represent her interests over all matters concerning improvement of the family's housing condition /docket sheet no.14/

The power of attorney was issued for representation in the Municipal borough Butyrsky, which has no relation to this dispute. Validity of the power of attorney expired on 3/030591996

Found in the 1st instance

On September 4th, 1996 G.S. Lapardin has concluded the investment agreement no.48/616 КР G.S. Lapardin has paid in the money for residential building construction investment in the amount of: 129,030,000 roubles, according to the investment agreement No.48/616 КР On February 7th, 1997 between the Committee of Municipal Housing (the Government of Moscow) and G.S. Lapardin a conveyance deed has been concluded regarding the apartment at the address: the city of Moscow, street Porechnaya, no.21, app.219, and that the deed was registered on 02/12/97 under the number 21592758, and the certificate of title of a dwelling no.1555672 for the above mentioned apartment has been issued.

NA

NA

NA

NA

NA

NA

Supervisor's opinion 1 Moscow City Court On 05/03/1995 the plaintiff issued to the defendant the power of attorney to represent her interests over all matters concerning improvement of the family's housing condition. NA

NA

NA

Skipped a circumstance that the money has been paid-in in teh name of G.S.Lapardin

Incomplete finding

paying the money in

NA

paying the money in

Incomplete finding

NA

NA

NA

Skipped a circumstance that earlier the same day, on February 7th, 1997, in the notary office, the claimant E.V.Lapardina made written consent to the transaction (docket sheet no.19)

Incomplete finding of fact regarding compliance with the requirement of par.3 Art. 35 of the Family Code of the Russian Federation

acquired apartment at issue is the community property of the Lapardin spouses, as

The apartment at issue was purchased in marriage

NA

The court did not ascertain the source of the surplus of 102,668,077 rbl. over the sale proceeds from the previous apartment. In the case materials there is no evidence of a source of comparable size, which may pertain to the spouses' community property

Incomplete finding

On 7/0702797 based on G.S.Lapardin's agreement with the Committee of Municipal Housing of Moscow dated 09/04/96 for building construction investment the appartment at ossue has been conveyed to the defendant and the certificate of title has been issued in his name. to represent her interests in all matters concerning improvement of their family's housing condition, and also her written consent was filed with the notary regarding the purchase by the defendant of the apartment at issue, on conditions and for price at defendant's discretion. /docket sheet no.19/ The written consent was dated 19/7/9702 during the purchase of the apartment at issue. The apartment at issue was purchased in marriage

NA

NA

Main fact

Found in the 1st instance

Found in the 1st instance

Found in the 1st instance

Found by the Supreme Court RF

NA

Additional finding of 1st order

Additional finding of 2nd order

Rebuttal of the finding

Violation committed in the finding of fact

Apellate opinion Moscow City Court

Objection

Supervisor's opinion 2 Supreme Court RF NA

NA

NA

NA

NA

NA

NA

Non-application of the requirement of para. 3 Art. 35 of the Family Code of the Russian Federation

NA

Non-application of the requirement of para. 3 Art. 35 of the Family Code of the Russian Federation

Misrepresentation of the fact of a case (there was only one party of transaction the defendant).

The apartment at issue was purchased in marriage

NA

NA

As applied to the finding of fact in this case (acquisition of property during the marriage), the burden of proof that the apartment would

Objection The power of attorney was issued for representation in the Municipal borough Butyrsky, which has no relation to this dispute. Validity of the power of attorney expired on 05/03/1996 NA

Objection

NA

Skipped a circumstance that the amount of paid-in money exceeds by 102,668,077 rbl. the sum gained from the sale of the previous apartment

The apartment at issue was purchased with the common money.

NA

NA

Non-application of the requirement of para. 3 Art. 35 of the Family Code of the Russian Federation

NA

The apartment at issue was purchased with the common money.

NA

On 02/07/1997 E.V. Lapardina filed with the notary her written consent regarding the purchase by you of the Porechnaya street apartment at issue, on conditions and for price at your discretion. on 02/07/1997 based on your agreement with the Committee of Municipal Housing of the city of Moscow dated 09/04/1996 regarding building construction investment the conveyance to you has been executed regarding the disputable apartment at: the city of Moscow, Porechnaja street, 21-219, and the certificate of title has been issued in your name. the parties purchased the apartment during the marriage the partiespurchased the apartment with common money

NA

NA

The apartment at issue was purchased with the common money.

The court did not ascertain a source from among those listed in para.2 Art. 34 of the Family Code of the Russian Federation: "The

Main fact

Additional finding of 1st order

Additional finding of 2nd order

Rebuttal of the finding

Violation committed in the finding of fact

Apellate opinion Moscow City Court

Objection

Supervisor's opinion 1 Moscow City Court

Objection

Found by the Supreme Court RF

NA

NA

NA

NA

NA

NA

NA

NA

NA

Found in the 1st instance

the defendant didn't produce proofs of concluded transaction between Shljapnikovs and Lapardin in the amount of 130000000,000,000 roubles.

NA

NA

The defendent produced the Shlyapnikovs' affidavit (docket sheet no. 51) regarding handing over of 130 million rbl. to purchase an apartment, which was executed under Canadian and Russian laws as a written testimony

Misrepresentation of the fact of a case.

NA

NA

NA

NA

Found in the 1st instance

according to Art. 161 of the Civil Code of the Russian Federation, transactions between individual citizens for the amount of not

NA

NA

Article 161 of the Civil Code of the Russian Federation. 1. Should be made in the simple written form: 2) transactions between individuals if the total is at least ten times statutory wage

False statement of provision set forth in Art. 161 of the Civil Code of the Russian Federation

NA

NA

NA

NA

Supervisor's opinion 2 Supreme Court RF have been purchased with the personal money, laid with the defendant

An affidavit made under the laws of Canada and attested in the Russian consulate in Montreal, is inadmissible proof You failed to produce the proofs, which could support your assertion that the apartment has been acquired with the money, which were not your's and the plaintiff's community property. NA

Objection property gained by spouses during the marriage (the community property) includes each spouse's labor or business income and proceeds from the intellectual activity; pensions, allowances and other cash payments, that have been received by them and that have no special purpose (material aid and other). The spouses' community property includes also movable and immovable things, securities, shares, deposits, capital shares, that were acquired from the common income of spouses and that were entrusted to the credit institutions or other commercial organizations, as well as any other property gained by spouses during the marriage irrespective of what in whose spouse's name it was acquired or in whose spouse' name or by whom of spouses the money were delivered". The claimany didn't rebutted what is said in para.1 Art. 36 of the Family Code of the Russian Federation: "The property gained by a spouse under other gratuitous bargains during the marriage, is his/her personal property". NA

Misrepresentation of the fact of a case.

NA

Main fact

Additional finding of 1st order

Additional finding of 2nd order

less than ten times statutory wage have to be notarized.

Found in the 1st instance

In conformity with Art.168 of the Civil Code of the Russian Federation, the conveyance deed and the certificate of title of a dwelling regarding the apartment at issue should be recognized void and null, since

Rebuttal of the finding

Violation committed in the finding of fact

Apellate opinion Moscow City Court

Objection

Supervisor's opinion 1 Moscow City Court

Objection

Supervisor's opinion 2 Supreme Court RF

Objection

2 Keeping of the simple written shape is not required for bargains which in conformity with article 159 of the present Code can be accomplished orally.

the requirements of Articles 34, 35 of the Family Code of the Russian Federation were infringed when concluding the сonveyance deed dated February 7th, 1997 between G.S. Lapardin and the Department of Municipal Housing, as

there is no E.V.Lapardina's consent to registration of the conveyance deed and to issuance of the certificate of title in the name of G.S.Lapardin.

Article 159. 2. Until otherwise agreed by the parties, any immediately executable transaction may be performed orally Article 34 of the Family Code RF contains no requirements to transactions. Art.35 of the Family Code RF. ' 3. A spouse who makes a disposition of real property and performs a transaction which is subject to notarization and/or registration as required by law, shall obtain thereto a notarized consent of another spouse." Thus, the law doesn't require additional consent for registration and issuance of the certificate

False statement of law regarding provision of Art.34 of the Family Code of the Russian Federation False statement of law regarding provision of para.3 Art. 35 of the Family Code of the Russian Federation

the defendant had an obligation to represent the claimant when making the papers regarding apartment conveyance

Сonclusion is not based on law and case materials

the defendant had an obligation to represent the claimant when purchasing the apartment

Сonclusion is not based on law and case materials

NA

NA