Judicial Division for Civil Case of Saint Petersburg City Court in the composition:
Chairperson – ХХХХХХХХХХХХХ, Judges: XXXXXXXXXXXX, XXXXXXXXXXXXX
Having considered in court session of February XX, 20XX the private complaint about Ruling of XXXXXXXXXXXXXX District court of Saint Petersburg dated December 25, 2008 as regards dismissal of application of Mr. XXXXXXXXXXXXXXXXXXXXX against XXXXXXXXXXXXXXXXXX for dissolution of marriage, recovery of alimony, and division of property jointly acquired in wedlock.
Having heard the report of judge Ms. XXXXXXXXXXXXXXX, explanations of attorney Ms. XXXXXXXXXXXXXX in favor of interests of XXXXXXXXXXXX, the representative of Ms. XXXXXXXXXXXX – XXXXXXXXXXXX acting by virtue of power of attorney dated October XX, 20XX.
Judicial Division for Civil Case of Saint-Petersburg City Court
Mr. XXXXXXXXXXXXXX applied to the court with the suit against Ms. XXXXXXXXXXX claiming dissolution of marriage, recovery of child support, division of property jointly acquired in wedlock.
The Ruling of XXXXXXXXXXXXX District court of Saint-Petersburg dated December XX, 20XX dismissed the suit of XXXXXXXXXXXXX.
In his private complaint XXXXXXXXXXXX asks to reverse the ruling, stating that the ruling has been determined unlawfully with violation of procedural law provisions.
Having examined the case papers, discussed the arguments of private complaint the Judicial Division believes that the ruling of the judge is subject to reversal.
When dismissing the suit the court was referring to provisions of cl. 1 o part 1 of Art. 134 of RF CPC and Art. 220 of RF CPC, specifying that the application is not subject to consideration and resolving in the civil procedure, since it was made with violation of jurisdiction rules, and must be considered in another proceeding.
Art. 134 of RF CPC regulates the procedure for judge’s refusal to accept a suit. And if the proceedings on the suit was initiated by the court with violation of Art. 134 of RF CPC, the court must dismiss the matter on the ground of Art. 220 of RF CPC, which action has not been done by the court due to lack of legal grounds, since the suit claims must be considered in the civil procedure by the court of general jurisdiction.
Art. 222 of RF CPC to which the court was referring upon dismissal of XXXXXXXXXXXXXX’s suit, fails to contain such a ground as defendant’s staying on the territory of a foreign state.
So the court has applied the provisions of civil procedure law, which cannot be applied.
At the same time the court’s conclusion stating that the dispute declared by XXXXXXXXXXXX is not under the jurisdiction of XXXXXXXXXXX District court is erroneous, since the defendant is a Russian citizen, has permanent residence within the Russian Federation in Saint Petersburg, therefore the suit was accepted by the court in compliance with the rules of Art. 28 of RF CPC.
Under the circumstances the Ruling of XXXXXXXXXXXXXX District court of Saint Petersburg dated December XX, 20XX as regards dismissal of application of Mr. XXXXXXXXXXX cannot be recognized as legitimate and justified, whereby it is subject to reversal.
On the ground of above stated, and being governed by Article 374 of RF CPC, the Judicial Division
To reverse the Ruling of XXXXXXXXXX District court of Saint Petersburg dated December XX, 20XX.
To send the case to XXXXXXXXXXXXX District court of Saint Petersburg for consideration in the same composition.
Judges (signed) (signed)