Annotation

In which part of the judgment are the prejudicial circumstances established — only in the operative part or also in the reasoning part? If also in the reasoning part, which statements contained therein have this force — all or only those that meet certain requirements? What might these requirements be? The proposed article answers these questions on the basis of the research of the law of the Russian Federation, England, Germany, the USA and Switzerland. The analysis of Russian legislation, doctrine and court practice supports the approach that the circumstances established not only in the operative part but also in the motivational part of the court decision are prejudicial. At the same time, it does not exclude the possibility of challenging the established facts. In France, Germany and Switzerland, only the operative part of the judgment is recognized as prejudicial. In countries belonging to the common law system, the preclusive effect of a circumstance does not depend on the part of the judgment in which it is established, but on whether this establishment meets a set of certain requirements. The version of regulation in the countries of continental Europe seems to be simpler for practical application, but the current Russian legislation and its interpretation by the Constitutional Court of the Russian Federation allow us to conclude that the approach used in the common law system is preferable: not only the operative, but also the reasoning part of a court decision may contain statements having prejudicial force; to what extent depends on whether the conclusion about the circumstances of the case meets a set of conditions.