Sample letter of consent to claim. How to write an application for recognition of claims? Consequences of admitting a claim

Recognition of the claim - the consent of the defendant with the stated requirements of the plaintiff, which, as a rule, leads to a decision to satisfy the claim.

Recognition of the claim by the defendant can be made in court on various grounds.reasons: groundlessness of the defendant's objections and (or) belief in the fairness of the plaintiff's claims, complete or partial voluntary waiver of the defendant's subjective right in favor of the plaintiff, unwillingness to continue the dispute, and others.

Recognition of a claim in court: general provisions

Recognition of a claim is distinguished by form and content. In form, this may be a separate written statement of the defendant or oral.

The acknowledgment of the claim, drawn up by the application in writing, is attached to the case file, as indicated in the minutes of the court session. The recognition of the claim, stated by the defendant orally, is recorded in the minutes of the court session. The record in the minutes of the court session is confirmed by the signature of the defendant.

In any case, the defendant's oral or written statement on the recognition of the claim must be brought to the court. Therefore, if the defendant agreed with the plaintiff's substantive legal requirements, for example, only in a written response to the claim, such a document will not be a recognition of the claim, but should be evaluated by the court along with other evidence when resolving the case on the merits.

A simple confession is an unconditional acceptance of a claim.

Qualified, on the contrary, is always done with reservations that do not allow the plaintiff's claim to be considered indisputable. For example: the defendant in court acknowledges the existence of a loan agreement between him and the plaintiff, but claims that he returned the claimed amount without receiving a receipt from the plaintiff confirming the return of funds.

Recognition of a claim should be distinguished from recognition by a party of the circumstances on which the other party bases its claims or objections (Part 2 of Article 68 of the Code of Civil Procedure of the Russian Federation). For example: the defendant acknowledges the conclusion of the transaction, but does not recognize the amount of debt claimed by the plaintiff.

Recognition of a claim as a unilateral action of the defendant should also be distinguished from a settlement agreement. In this regard, the parties to the process should be careful when drawing up their agreements.

For example: if, according to the conditions contained in the settlement agreement, the defendant fully, unconditionally recognizes the claims of the plaintiff and undertakes to repay the existing debt to the creditor in the amount of the claim price, it seems erroneous to formalize such an action by a settlement agreement due to its obvious unilateral nature.

If the rights and legitimate interests of the defendant are protected in court by his representative and the defendant does not personally take part in the process, it should be noted that the recognition of the claim refers to separate procedural actions that, in order to be performed by the representative in court, must be specifically stipulated in the power of attorney.

Consequences of admitting a claim

The recognition of the claim is assessed by the court in conjunction with all the materials available in the case and taking into account the circumstances of the case clarified in the trial.

The voluntariness of the actions is clarified by questioning the defendant. In the course of such a survey, the court establishes: the presence or absence of conditions for recognizing the claim; the absence of circumstances that force the defendant to admit the claim; the presence of diseases that prevent understanding the meaning of procedural actions; understanding the meaning of the content of claims and the consequences of the commission of a procedural action.

ABSTRACT: Lawyer of the "Forum" collegium (Khabarovsk) K.V. Bubo offers readers his reasoning about the right of the defendant to recognize the claim. The author also draws attention to some legal consequences that occur if the defendant makes such a decision. The proposed work contains the assumption that the current civil procedural legislation does not take into account all options for the possible lawful behavior of the defendant.

Key words: civil process; legality; right; human rights; recognition of the claim; plaintiff; defendant; adversarial process; third party; purpose of civil proceedings;

Recognition of the claim by the defendant: is everything obvious?

It would seem that in the legislation it is rarely possible to find something simpler than the right of the defendant to recognize the claim. Everyone is well aware of the legal consequences that occur if the defendant decides to exercise this right. However, if you carefully and thoughtfully re-read the law, questions will certainly arise.

For example: what exactly does the defendant “admit” when making the appropriate decision? Do not rush to answer, because here "options are possible." The text of the Civil Procedure Code of the Russian Federation tells us that in order to answer the question posed, we will have to separate two heterogeneous categories from one another. By itself, the word "recognition" is used by the authors of the text of the Code of Civil Procedure to denote different concepts that do not coincide with each other.

For example, in accordance with Parts 2 and 3 of Article 68 of the Code of Civil Procedure of the Russian Federation, “the recognition by a party of the circumstances on which the other party bases its claims or objections relieves the latter from the need to further prove these circumstances. The confession is recorded in the minutes of the court session. The confession stated in the written statement shall be attached to the case file. If the court has reason to believe that the confession was made in order to conceal the real circumstances of the case or under the influence of deceit, violence, threat, honest delusion, the court does not accept the confession, about which the court issues a ruling. In this case, these circumstances are subject to proof on a general basis.

For comparison, I will give excerpts from the text of Article 39 of the Code of Civil Procedure of the Russian Federation: “the defendant has the right to recognize the claim.” "The court does not accept ... recognition of the claim by the defendant ... if it is contrary to the law or violates the rights and legitimate interests of other persons."

It is clear that we are talking about two different rights of the defendant. He has the right to agree with how the plaintiff sets out the circumstances of the case (that is, to recognize the factual side of the claim). This does not mean at all that he recognizes the claim in the sense of Article 39 of the Code of Civil Procedure of the Russian Federation, since, under the same circumstances, the defendant may adhere to his own legal qualification of the facts and insist on the application of not the law to which the plaintiff refers, but another. The continuation of a legal dispute about rights is quite possible in the absence of a dispute about the fact.

Is the converse true? Does the recognition of a claim in the sense of Article 39 of the Code of Civil Procedure of the Russian Federation mean that the defendant also recognizes all, without exception, the factual circumstances referred to by the plaintiff? In accordance with the first impulse that arises from such a formulation of the question, I would like to answer that yes, if the defendant recognizes the claim, then he recognizes the entire factual aspect of the case before the court in the wording in which it is stated by the plaintiff. For example, this opinion is shared by the authors of an interesting article “Limits to the exercise of the right to recognize a claim by the defendant” Stoyanov V.D. and Apalikov N.S.:

“Such a procedural action of the defendant as the recognition of a claim is a recognition of his duty or responsibility, that is, the unconditional consent of the defendant addressed to the court with the substantive legal requirements of the plaintiff (a third person who makes independent claims regarding the subject of the dispute), expressed in the form established by the procedural law. Since the plaintiff's claim to protect the right or interest, i.e. The claim is based on certain legal facts, which, according to general rule, the plaintiff himself must prove, then the recognition by the defendant of the claim is nothing more than his recognition of these very facts by which the opposing party substantiates its claims. The administrative nature of the right to recognize a claim is manifested in the fact that if the court has no doubts about the reliable and free expression of the will of the defendant, the consideration of the case ends with the issuance of a court decision without conducting a trial on it (part 3 of article 68, paragraph 2 of part 4 of article 198 Code of Civil Procedure of the Russian Federation)" (1).

“If there is a recognition by the defendant of certain facts, there is no recognition of the claim as a whole, even if the defendant admitted all the facts, except for one. On the other hand, recognition of a claim means the consent and recognition by the defendant of absolutely all the facts pointed out by the plaintiff” (2).

I emphasize that the work cited deserves attention, but I was not completely satisfied with the conclusions drawn in it. In particular, in my opinion, the authors V. D. Stoyanov and N. S. Apalikov bring these two types of recognition too close. I believe it is obvious that the recognition of a claim in the sense of Article 39 of the Code of Civil Procedure of the Russian Federation cannot be reduced to a simple recognition of the totality of the facts and circumstances of the case. I draw this conclusion on the basis that in addition to them (or apart from them, which will be discussed later), the party recognizing the claim agrees with both the legal qualification and the legal consequences of the claim, and this is more important than just the circumstances that formed the basis spore.

Continuing the reasoning, I would also like to draw attention to some common features that exist in the recognition of facts and the recognition of the claim. In accordance with Part 2 of Article 39 of the Code of Civil Procedure of the Russian Federation, “the court does not accept the recognition of the claim by the defendant if this is contrary to the law or violates the rights and legitimate interests of other persons.” In accordance with Part 3 of Article 68 of the Code of Civil Procedure of the Russian Federation, “if the court has reason to believe that the confession was made in order to conceal the actual circumstances of the case or under the influence of deceit, violence, threat, honest delusion, the court does not accept the confession, which the court issues definition. In this case, these circumstances are subject to proof on a general basis.

In general, we can say that both rights have their limitations. At the same time, the right of the defendant to recognize the claim (in the sense of Article 39 of the Code of Civil Procedure of the Russian Federation) is limited in connection with the rights and interests of other persons or the principle of legality (which in practice often represents the embodiment of public interest).

The right to recognize the facts is limited by considerations of establishing the truth in the case (this is indicated by the reference to the possible "concealment of the actual circumstances"), as well as the own interests of the person who agrees with the facts presented by the opposite side.

It turns out a rather intricate construction, from which it is difficult to draw any unambiguous and firm conclusion about the relationship between these two varieties of "recognition". Let us dwell for the time being on the fact that the defendant is free to recognize both the facts separately (objecting to their legal interpretation), and the claim as a whole. Both of these rights are limited by law, but the existing restrictions are based on different, almost incompatible grounds.

The complexity and ambiguity of Part 3 of Article 68 of the Code of Civil Procedure of the Russian Federation lies in the fact that, in accordance with the principles of dispositivity and competition, as well as within the meaning of Article 56 of the Code of Civil Procedure of the Russian Federation, the burden of proof lies with the parties. It is difficult to imagine how the court could have its own grounds for believing that the concerted actions of the parties are being taken with the aim of “concealing the real facts of the case”.

One significant digression should be made here: the recognition by the defendant of a fact with the aim of “concealing the real circumstances” is possible only if the plaintiff pursues a similar goal when he asserts the same fact on his part. After all, the initiative to discuss the fact comes in this case from the plaintiff. The Code of Civil Procedure rather unambiguously refers to a situation where the parties are trying to establish certain circumstances by concerted actions and approve them with the legal force of a court decision. At the same time, the law perceives such actions as something that should be resisted in every possible way, because, according to the law, the court in this case “does not accept the confession.” Also, he "does not accept recognition" in the case of "good faith error (3)" of the party. It turns out that this rule obliges the court in some cases to be more aware of the circumstances of the case than even the parties to the dispute!

But these "subtleties" of the issue are not exhausted! The following is obvious: “not accepting the confession” by the court does not mean that this fact is completely rejected. Moreover, later it can appear in the descriptive and motivational part of the decision, as proven. It is quite clear that to a large extent its legal fate depends on the degree of activity of the defendant in refuting this fact. That is, it will not work here to ignore the will of the parties, no matter from which side you approach.

Meanwhile, article 12 of the Code of Civil Procedure states that justice in civil cases is carried out on the basis of competition and equality of the parties. The role of the court is described in general terms quite clearly: “while maintaining independence, objectivity and impartiality, it manages the process, explains to the persons participating in the case their rights and obligations, warns about the consequences of the commission or non-commission of procedural actions, provides the persons participating in the case , assistance in exercising their rights, creates conditions for a comprehensive and complete examination of evidence, the establishment of factual circumstances and the correct application of legislation in the consideration and resolution of civil cases (4)”.

Comparing the above norms, we can only state that the legislator has not come to the final conclusion whether the judge is obliged to be more active than the parties in establishing the circumstances of the case. Declaring the process, in general, as “adversarial”, the legislator “in details” left the “active judge”, that is, one who should know better than the parties when one of them is “in good faith mistaken”, and when there is a conspiracy to “conceal real circumstances." At the same time, the mechanism is formed in such a way that the judge will have to make a decision on this matter long before he retires to the deliberation room.

At the same time, Article 56 of the Code of Civil Procedure of the Russian Federation still imposes the burden of proof on the parties. The stipulation that the court “submits circumstances for discussion, even if the parties did not refer to any of them”, is rather weak, because the court is not always aware of the presence of any new circumstances to be investigated.

I would like to make a reservation that by "collusion" of the parties in order to establish certain circumstances, I do not propose to understand their literal, direct cooperation. It is much easier to imagine a situation in which it is unprofitable for both sides to reveal certain facts even in the face of the most fundamental confrontation. Or vice versa, both parties are equally interested in presenting any information in a certain light. Obviously, there is every reason to state the inconsistency of the position of the Russian legislator on the issue of an “active judge”, who would seek the truth sometimes even against the agreed will of the parties.

I would like to make a separate reservation: within the meaning of Part 3 of Article 68 of the Code of Civil Procedure of the Russian Federation, the court is obliged to resist any attempts by the parties to hide certain circumstances in concert. This is true even for those cases where the “hidden” or, conversely, “formed” by the parties circumstances are relevant only to the interests of these parties themselves. The Court does not accept "bad faith" admissions of facts even when such admissions do not affect the interests of outsiders at all. Thus, a state monopoly on truth is literally established. Formally speaking, the parties do not have the opportunity to agree and "retroactively" recognize any fact as true, even when it concerns only their own interests.

As follows from the previous paragraph, the facts in civil proceedings in some cases are established not only in the interests of the parties. From my point of view, this is very interesting - the establishment of the circumstances of the case according to the Russian Code of Civil Procedure is carried out in the interests of the parties, plus in the interests of the truth, which "belongs to the state", even when both parties do not need some facts to appear in the descriptive motivational part of the judgment. Such a configuration inevitably introduces and will continue to introduce the spirit of public law, rather than private relations, into the civil process.

Whether this state of affairs is always true is a separate issue, and we will touch on it later. The foregoing does not exhaust the chosen topic! Now I propose to return to the recognition of the claim in the sense of Article 39 of the Code of Civil Procedure of the Russian Federation. Compared with the recognition of a fact, the right to recognize a claim as a whole (in the sense of Article 39 of the Code of Civil Procedure of the Russian Federation) is limited in accordance with other principles, namely, it is made dependent on the legality and on the rights and interests of other persons!

In general, reading this article of the law leaves the impression that the process of proving is not so firmly connected with the resolution of those substantive legal relations that are the subject of a litigation! Recognizing the claim as a whole, the defendant, as it were, “covers” those factual circumstances that the plaintiff initially put as the basis of his claims, that is, as it were, pushes them “into the background”. Here I would like to make a reservation - the defendant does not necessarily "recognize" in detail all the circumstances referred to by the plaintiff. Recognition of a claim in the sense of Art. 39 of the Code of Civil Procedure of the Russian Federation is, first of all, consent to the occurrence of certain legal consequences in the substantive sense (that is, on the merits of the dispute). Whether "all the circumstances" are "recognized" or not - we will talk about this below. Or maybe recognition of a claim is generally a way to resolve a dispute without any connection with the circumstances of the case?

One can even “put the question point-blank”: can recognition of a claim in the sense of Article 39 of the Code of Civil Procedure of the Russian Federation serve as a means of “concealing the real circumstances of the case”?

Let us note that the Code of Civil Procedure of the Russian Federation does not at all contain an order to the court that it should not accept the recognition of the claim by the defendant on the grounds of avoiding "concealment of the actual circumstances of the case." This leads to the separation of two different procedural situations: in one case (5), a judge trying a civil case is forced to restrict a party in recognizing the facts so that the parties do not hide some circumstances in agreement. At the same time, when deciding whether the parties "hide" the circumstances or "do not hide", the judge is forced to partially predetermine the meaning of some evidence, which is inevitable.

In another case (6), when the defendant recognizes the claim in its entirety, in the sense of Article 39 of the Code of Civil Procedure of the Russian Federation, the judge is not very bound by considerations as to whether any circumstances are concealed or not concealed. Even more than that, part 2 of clause 4 of Article 198 of the Code of Civil Procedure of the Russian Federation directly indicates that "in the event that the claim is recognized by the defendant, the reasoning part of the court decision can only indicate the recognition of the claim and its acceptance by the court."

On the one hand, this is understandable. Civil legal proceedings are intended to regulate substantive legal relations between citizens. For this reason, the procedural rights of citizens are rather "serving" in relation to the administrative powers of citizens in relation to their material rights.

In other words, if a defendant citizen decided to voluntarily dispose of the material right that the plaintiff disputes with him, and cede this right to him (the plaintiff), then such a “kind of transaction” is recognized as permissible in accordance with the Code of Civil Procedure of the Russian Federation. It is recognized as admissible even in the case when the actual circumstances of the case, if they were investigated, could indicate the need to make the opposite decision. The defendant disposed of his material right, regardless of the actual factual circumstances, but could simply transfer it to the plaintiff or donate it. A settlement agreement of almost any content does not need to be substantiated by its actual circumstances at all.

If the parties make an attempt to achieve the same legal result through the coordinated formation of a certain informational picture by the court (that is, they begin to simultaneously recognize the circumstances that lead to the adoption of their planned decision), then such actions may encounter opposition from the court on the grounds that the parties are trying to "Hide the real circumstances of the case"! It is obvious that the collection of facts in a case does not at all serve the parties in order for them to dispose of their material rights.

The facts are necessary for the court in the event that the subject of the claim will have to be disposed of in an involuntary manner, since the reliability of the established circumstances is considered by us to be one of the criteria for the legitimacy of the decision made by the court. It is true that this "certainty of circumstances" itself also depends mainly on the activities of the parties, but we have already spoken about this earlier (7), and I see no reason to repeat here again.

But what if the situation is exactly the opposite? What if the defendant is ready to assume substantive legal obligations (or refrain from acting), as required by the plaintiff, but at the same time refers to other factual circumstances or even denies the circumstances set out by the plaintiff? How strong is the connection between the truth of the circumstances established by the court and the authority of its final decision?

I believe that the answer to this question has both theoretical and practical value, because we are talking about the fact that the defendant is unilaterally ready to dispose of some of his substantive authority (right). He is ready to use for this purpose his procedural right to recognize the claim. After all, procedural rights are in a subordinate position in relation to substantive law, right? In accordance with the principle of discretion, the defendant has the right to independently dispose of both his material and his procedural rights.

Of course, the plaintiff may insist on achieving not only a substantive legal result, but also on the establishment of certain legal facts. However, in any particular case, the plaintiff is by no means guaranteed that he will find sufficient evidence to establish these facts.

Let's return to this question again: what if the defendant is ready to assume substantive legal obligations in accordance with the requirements of the plaintiff, but is not ready to recognize as reliable those circumstances that underlie the claim? The most obvious answer would be to conclude a settlement agreement, but neither party can be forced to sign this document. Everyone, including the plaintiff, can renounce the world, if only out of stubbornness. In addition, the plaintiff may have misconceptions about the sufficiency of the evidence he has.

The defendant may have quite serious motives for such behavior (recognition of the claim) - ranging from the desire to resolve the dispute without sacrificing personal relationships, and ending with the desire to avoid the consequences specified in part 2 of article 61 of the Code of Civil Procedure of the Russian Federation. Sometimes it's both together. Let me remind you that in accordance with Part 2 of Article 61 of the Code of Civil Procedure of the Russian Federation, “the circumstances established by a court decision that has entered into legal force in a previously considered case are binding on the court. These circumstances are not proven again and are not subject to dispute when considering another case involving the same persons.

If we approach the recognition of the claim by the defendant from the position that at the same time he simultaneously recognizes all the circumstances of the case without exception, then we will have to be consistent and consider this whole situation from the point of view of the applicability of this, unpleasant for the defendant, norm of the Code of Civil Procedure of the Russian Federation. It turns out that purely procedural, formal expediency in this case prevents the defendant from freely disposing of his material right or obligation, which is the main subject of the dispute. He will be forced to dispose of them not voluntarily, but in accordance with the facts and arguments presented by the plaintiff. I think it makes no sense to make a separate reservation that the situation as presented by the plaintiff is far from always an example of the purest truthfulness.

Suppose that the law will be more clearly stated that the defendant is entitled to recognize the claim with the proviso that he does not recognize the factual circumstances on which it is based. In this case, it may be objected to me that this infringes on the interests of the plaintiff if he insists on establishing these circumstances. For example, the plaintiff may mean that he intends to use the same circumstances as established in subsequent legal proceedings in accordance with part 2 of article 61 of the Code of Civil Procedure of the Russian Federation. However, at the moment when the defendant declares his consent to fulfill the requirements of the plaintiff in their substantive part, the evidence available in the case will not necessarily be on the side of the plaintiff!

For the purposes of this article, one can imagine a hypothetical situation in which the court does not accept the recognition of the claim by the defendant on the grounds that he objects to the circumstances stated by the plaintiff (although the defendant is ready to fulfill the substantive part of the claims of the plaintiff on the merits). In this case, in the course of further legal proceedings, the plaintiff may well lack evidence to substantiate his claims. If the goal of “establishing the truth” prevails over the goal of settling legal relations between citizens, a judge who is consistent in his actions may even refuse to satisfy those demands that the defendant did not previously object to (but only objected to the facts on which they are based).

If the recognition of the "substantive" side of the claim is too rigidly tied to the recognition of its "factual side", then even more surprising conclusions can be drawn. For example, it is easy to see that when the judge accepts the defendant's statement of recognition of the claim, he does not warn him that at the same time he recognizes some factual circumstances that the plaintiff can use against him in subsequent claims.

Does this mean that the opposite is true, and that the defendant, recognizing the substantive claims of the plaintiff as acceptable to himself, does not at all recognize the factual side of the claim? As we can see, the opposite point of view (8) is found in the literature, and the law does not contain a detailed answer to this question. I am inclined to believe that, by accepting the confession of the claim from the defendant, the court could discuss in more detail the question of what exactly the defendant admits.

Here's a practical example:
Citizen N. was dismissed from the enterprise LLC "West-East" for absenteeism. She filed a lawsuit against her former employer to change the grounds for dismissal and compensation for non-pecuniary damage. The defendant, Zapad-Vostok LLC (9), admitted the claim, citing its willingness to voluntarily change the grounds for dismissal, as well as the desire to maintain good business relations with N. The defendant, recognizing the claim, did not claim that there was no absenteeism, and referred only to his good will. In addition, for the above reasons, the defendant did not recognize the claim for compensation for non-pecuniary damage, believing that the plaintiff had not suffered non-pecuniary damage.

When satisfying the claim, the court proceeded from the recognition by the defendant of the claim. At the same time, the court perceived the readiness of the former employer to voluntarily formalize the dismissal of the plaintiff at his own request as recognition by the enterprise of the circumstances that were set out in the statement of claim (that is, as recognition of the absence of absenteeism). Since compensation for non-pecuniary damage followed from the violation of the labor rights of the employee (and the court took the position of the defendant precisely as the actual recognition of such a violation), the claims for compensation for moral damage were also satisfied, although in a smaller amount than the plaintiff demanded. Unfortunately, the defendant did not appeal against the decision.

I gave this example here only to show that the court in practice does not distinguish between the “shades” of recognition by the defendant of the claim, but in vain. After all, West-Vostok LLC is a private enterprise and the dismissal of an employee for one reason or another falls within the competence of its management: the law does not prohibit the employer on a voluntary basis to improve the conditions for dismissing an employee compared to the original ones.

Moreover, the law does not oblige the employer to paranoidly prosecute him for absenteeism (which the employer did not do in the considered case). The whole situation is a relationship between two individuals (although one of them has the status legal entity). For this reason, the fact that one of them has the right to voluntarily fulfill the demand of the other, “turning a blind eye” to absenteeism that has taken place, acquires significant significance. At the same time, the defendant's side had every reason to disagree with the claim for compensation for non-pecuniary damage, because the whole piquancy of the situation was that, from the point of view of the enterprise, absenteeism took place.

However, the court does not distinguish between such shades, perceives the desire of the former employer to improve the situation of the former employee as an admission of his (the employer's) "guilt" and, without any doubt, adds to the defendant a "makeweight" in the form of satisfying the claims for compensation for "moral damage". There are obvious and very unpleasant traces of "criminal procedural consciousness" in the civil process. It turns out that the recognition of the claim is almost equated with the "confession of guilt", which, as you know, is the "queen of evidence." Separately, I would like to emphasize that the conclusion of a settlement agreement in this situation was hardly possible for many reasons, including a considerable share of simple stubbornness. Also, I would not undertake to predict the outcome of the case if the defendant "went to the last" in the sense of not recognizing the claim. I admit that the case could be decided in favor of the defendant.

I emphasize: the key in this situation is the fact that the former employer had the right (and not the obligation) to bring the employee to disciplinary liability in the form of dismissal for absenteeism. Article 192 of the Labor Code of the Russian Federation contains exactly the following wording: "the employer has the right to apply disciplinary sanctions." In this situation, the voluntary cancellation by the employer of a previously imposed disciplinary sanction is not a violation of the law, even if the misconduct has taken place. And it is all the more strange to connect such actions of the employer with his recognition of his “guilt” or the illegality of the imposed penalty, because he is within his powers, and at the same time improves, and does not worsen, the position of the employee. Restricting the employer in such actions would be excessive public interference in private relations.

Returning to the above example, we see that, due to its procedural “softness”, the defendant received an “increase” in the form of expenses for compensation for moral damage, although if he had shown counter “stubbornness”, the legality of imposing a penalty would have been proven! The court took his position as an "admission of guilt".
Nevertheless, the judicial practice in this matter, as we see, is firm in relation to the defendant: either you admit the claim (with all the factual circumstances, no matter how fancifully the plaintiff may state them) or you completely object (and deprive yourself and, possibly, of the plaintiff, the opportunity to settle the substantive part of the dispute, because the plaintiff may not have enough evidence).

I consider it necessary to conclude that both the recognition of a claim in the sense of Article 39 of the Code of Civil Procedure of the Russian Federation and the recognition of circumstances in the sense of Article 68 of the Code of Civil Procedure of the Russian Federation are burdened by their excessive attachment to the concept of "objective truth". Thus, the legislator establishes that “the recognition by a party of the circumstances on which the other party bases its claims or objections relieves the latter from the need to further prove these circumstances.” But here, as if frightened, he makes a reservation against “concealment of the actual circumstances of the case or a conscientious error”, as if the court is able, on its own initiative, to surpass the parties in collecting evidence.

The law reserves the right of the defendant to freely recognize the claim. But he does not make a clear distinction between those situations where substantive claims are recognized simultaneously with the recognition of factual circumstances and those when the defendant is ready to yield to the claims of the plaintiff, but does not recognize the factual side of the case.

Of course, in accordance with Article 198 of the Code of Civil Procedure of the Russian Federation, “if the claim is recognized by the defendant, the reasoning part of the court decision can only indicate the recognition of the claim and its acceptance by the court.” This somewhat mitigates the position of the defendant admitting the claim and "obscures" the issue of his recognition of the factual circumstances. I think that in this case it would be a very right decision.

Nevertheless, in both cases, a “bias” of civil procedural legislation towards publicity is visible, which in some cases may not be combined with the principle of optionality declared by the Code of Civil Procedure of the Russian Federation. In the field of establishing facts, the cautious position of the legislator can partly be understood, because the circumstances established by the first instance (including those established by the consent of the parties) can not only entail consequences in accordance with Part 2 of Article 61 of the Code of Civil Procedure of the Russian Federation, but also affect the decisions of subsequent instances on the same matter. However, one can hardly consider justified the position, although cautious, but contradictory and inconsistent.

The tangible public trends in our civil procedural legislation are quite understandable from a historical point of view. We should not forget that our judicial procedure largely inherits the Soviet one. And the opinion of the founders of the Soviet legal tradition is widely known. I will quote V. I. Lenin: “We do not recognize anything “private”, for us everything in the field of economy is public law, and not private. We allow only state capitalism, and the state is us, as mentioned above. Hence - to expand the use of state intervention in "private law" relations; to expand the right of the state to cancel "private" contracts; apply not corpus juris romani to "civil legal relations", but our revolutionary legal consciousness ... "(10).

It would be strange if the Code of Civil Procedure, which is so far from the Soviet one, would easily allow the parties to “twist” their relations, while hiding some circumstances from the court. Indeed, by doing so, the parties would deprive the court of applying the principle of legality to their relations in its literal public law incarnation. However, the full and final implementation of the principle of publicity is clearly hindered by the right of the defendant to arbitrarily and unmotivatedly recognize the claim, thereby depriving the state enforcement bodies of the opportunity to resolve the dispute in accordance only with the rule of law and revolutionary legal consciousness.

This is what I am inclined to explain that the issues related to the procedure for recognizing a claim are reflected in the law in a very dotted way: the legislator does not consider it necessary to make this part of the process detailed, transparent and therefore more attractive to the parties. Increasing the attractiveness of various kinds of "confessions", full or partial, would be contrary to the general idea of ​​public interference in the relations of private individuals.

“Cutting down to the last breath” in court is precisely the ideology of state conflict management based on the principle of legality alone. After all, no matter what the parties do in this case, the judge will decide in accordance with the prescriptions of the law, based on inner conviction. She (this ideology) opposes any attempt to resolve the dispute, taking into account the will of the parties. And the recognition of the claim looks to us as some strange relic, which there is no need even to prescribe in detail in the law.

Now that we have established that a fact is "public property" and dealt with some of the consequences of this conclusion, I would like to take one more turn in our reasoning. I propose to focus on the fact that a civil dispute is not always a confrontation between two private interests. Often, private interest in court is opposed to public interest, which finds its representation in the face of various state bodies. Of particular interest to our work are such cases where the establishment of the fact is the main or only issue of the trial.

Example #2:
Citizen N. applied to the court in a special proceeding. She asked to establish the fact of her permanent residence in the territory Russian Federation on the day of entry into force of Law No. 1948-1 of November 28, 1991 "On Citizenship of the RSFSR", namely February 6, 1992. In the application, she indicated that the recognition of this circumstance as established is required for her to confirm the citizenship of the Russian Federation and subsequently apply to the FMS in order to obtain a passport.
The court, on its own initiative, involved the bodies of the Federal Migration Service as an “other interested person”. Of course, they did not appear in N.'s statement. Thus, the court stated that the state body has an interest in this fact. I especially emphasize - it is in the fact as such, taken separately from legal relations, because, although the applicant did not hide why she (the fact) needed it, the issue of issuing a passport at the time of the trial had not yet been raised.

The representative of the FMS persistently objected to N.'s arguments, despite the fact that the applicant had convincing evidence and the absence of any materials from the FMS. After satisfying the requirements of N, this judicial act was appealed by the FMS to a higher authority. Out of curiosity, I asked what exactly caused such active opposition, because the public interest does not at all consist in the fact that a citizen would certainly be refused. In some cases, the public interest does not at all require that the state oppose citizens in achieving their personal goals. I was given the answer that this is the position of the “higher authorities”. The position is to object in court against any demands of citizens.

As we can see, in the second case "the right of state ownership of a fact" receives a different expression than in the first. In the second case, it manifests itself in the fact that the court involves state bodies as an "interested person" in some cases of special proceedings. At first glance, judicial practice thus states that the public interest is present directly in the field of establishing the facts, that is, even when the citizen has not yet had time to physically apply to the relevant state body (in this case, the FMS) and has not received any satisfaction of his requirements no denial of their satisfaction. However, individual details indicate something else: it turns out that we are not talking about public interests, but only about the bureaucratic (departmental) interest of a particular body.

The point of view that state bodies are professional representatives of public interests is not rooted in the domestic legal culture. In this connection, one hears so often references to "the authorities know best", to the vague "interests of the state" and "just in case". At the same time, it is clearly seen from the second example that civil servants treat facts no more responsibly than any other individual. Only the vector of application of efforts differs, but not the degree of commitment to scientifically based methods of cognition of reality. The decision in favor of N., as far as I was able to understand it for myself, would have been appealed in any case, no matter how powerful the arguments in favor of its legality and validity.

Exactly the same impression leaves the majority of civil proceedings in which a state body acts as a defendant. Recognition of a claim by the state in most cases seems to be something exceptional. Representatives of the state prefer to "stay to the last" and object to the claim even when the plaintiff's arguments look more than convincing.

Here I would like to make one reservation. If we consider the activities of state bodies as an expression of public interest, then such behavior can be understood. Recognition of a claim by an executive authority, as it were, “takes out” the judicial function beyond the limits of the court itself.

Recognition of a claim in accordance with the Civil Procedure Code of the Russian Federation cannot be somehow stipulated and motivated. It should be borne in mind that the state institution - the defendant is obliged to make a decision not in personal, but in public interests, please forgive me for an involuntary pun. At the same time, the adoption of a decision by a state body or local self-government body to recognize a claim without any motivation (I emphasize once again - such motivation is simply not provided for by law), as it were, "transfers" the final decision in a civil case to the discretion of the official who is authorized to recognize the claim on behalf of states. After all, in this case, the court has almost no arguments left in order not to satisfy the claim against the state recognizing it (and in fact, the authorized body or person acting on behalf of the state). The recognition of a claim theoretically almost always entails its satisfaction (and practically always).

From my point of view, such "mechanics" significantly complicates the recognition of claims by state bodies. If such a procedural action would be carried out "openly", that is, with a "transparent", transparent motivation, then, on the one hand, the court could assess how convincingly representatives of the state stand guard over public interests. On the other hand, I believe that this would reduce bureaucratic fear in the style of "no matter what happens." An open, rather than behind-the-scenes, discussion of the conditions for recognizing a claim in this case would well counteract the whipping up of unnecessary and unnecessary passions and suspicions. I emphasize that in this case we are talking only about state bodies that act as defendants and are faced with the question of recognizing the claim. Their difference lies in the fact that they are called upon to protect the public interest, and because of this, their actions should be as clear and "transparent" as possible. The same persons who act in court independently, on their own behalf and in their private interests, from my point of view, cannot be obliged to explain the recognition of the claim (although they have the right to do this, for example, to make any reservations).

It can be assumed that greater predictability of judicial practice could increase the popularity of the procedural action under discussion (recognition of the claim). However, an ordinary defendant most often perceives judicial practice indirectly, through lawyers. The predictability of judicial practice can only increase in the eyes of our professional corporation, since it is we who, to some extent, participate in its formation. It would be naive to think that someday the inhabitants, in all their multitude, will be able to appreciate all the subtleties of the judicial system. This means the need for some revision of the meaning and methodology of the legal profession. Obviously, "cutting to the last breath" is often not the best way settlement of social conflict.

At the end of my work, I would like to elaborate on my own position on the topic of the article. It seems to me that the legislator vainly believes that the triad “withdrawal of a claim - recognition of a claim - amicable agreement” in itself sufficiently covers all the nuances of voluntary resolution by the parties of their disputes. In particular, the recognition of the claim by the defendant is an independent and very valuable right, the use of which could make it possible to make quite fair decisions, and it would be great to reduce the time for consideration of many cases.

In order to increase the popularity of this procedural law among citizens and specialists, I believe it would be advisable to prescribe in the law the procedure in which the defendant can recognize the claim in more detail. Surrender most often has its conditions, doesn't it? The alternative to capitulation is war, which is long and bloody (although in our case it is only expensive and takes precious time from all those involved).

In particular, it could be proposed to supplement Part 4 of Article 198 of the Code of Civil Procedure of the Russian Federation with the provision that if the claim is recognized and accepted by the court, no circumstances that were not recognized by the defendant can appear in the descriptive and motivational part of the decision. From my point of view, this would not violate the interests of the plaintiff in any way. If the plaintiff is interested in establishing circumstances, for example, to use them in other legal proceedings in accordance with Part 2 of Article 61 of the Code of Civil Procedure of the Russian Federation, and he has sufficient evidence for this, he can establish them in subsequent proceedings.

Of course, when working out the conditions under which recognition of a claim is possible, a reasonable balance of interests of the plaintiff and the defendant should be taken into account. But to literally equate the recognition of claims with the recognition of all the factual circumstances set forth by the plaintiff in his statement, I consider it absolutely inappropriate.

01/27/2015
Advocate non-profit organization Bar Association of the Khabarovsk Territory "Forum",
Khabarovsk

Konstantin Vladimirovich Bubon

[email protected]

1 - Stoyanov V. D., Apalikov N. S. “Limits to the exercise of the right to recognize a claim by the defendant” \\ Judicial reform and problems of the development of civil and arbitration procedural legislation: Proceedings of the international scientific and practical conference. - Moscow: RAM. 2012
2 - Ibid.
3 - Part 3 of Article 68 of the Code of Civil Procedure of the Russian Federation.
4 - Part 2 of Article 12 of the Code of Civil Procedure of the Russian Federation
5 - part 3 of Art. 68 Code of Civil Procedure of the Russian Federation
6 - art. 39 Code of Civil Procedure of the Russian Federation
7 - K.V. Bubo, On the question of the legal category "truth" in civil and criminal proceedings and its place in a number of legal values ​​// "Lawyer", No. 5, May 2012
8 - Stoyanov V. D., Apalikov N. S. “Limits to the exercise of the right to recognize a claim by the defendant” \\ Judicial reform and problems of the development of civil and arbitration procedural legislation: Proceedings of the international scientific and practical conference. - Moscow: RAM. 2012
9 - All names in this article have been changed by the author, possible coincidences are random.
10 - Lenin V. I. On the tasks of the People's Commissariat of Justice in the conditions of the new economic policy: Letter to D. I. Kursky // Complete Works. Ed. 5th. T. 44. M., 1964. S. 398

Bibliography:

1. Constitution of the Russian Federation
2. Civil Procedure Code of the Russian Federation.
3. Stoyanov V. D., Apalikov N. S. “Limits to the exercise of the right to recognize a claim by the defendant” \\ Judicial reform and problems of the development of civil and arbitration procedural legislation: Proceedings of the international scientific and practical conference. - Moscow: RAM. 2012
4. Osokina G.L. civil process. A common part. 2nd ed. Norm 2010.
5. Commentary to the Code of Civil Procedure of the Russian Federation. 3rd ed. ed. deputy chairman Armed Forces of the Russian Federation Nechaeva V.I.

Participants in a civil dispute have the right to decide on the recognition of the claim by the defendant. After the other party agrees with the demands, the judge makes a positive decision that satisfies the plaintiff. If the defendant agreed with the statement of claim, this does not mean that he is fully prepared to satisfy all the requirements of the opposite side.

General provisions

Consent with the claim can be not only full, but also partial. After one party agrees with the requirements of the other, the judicial authority fully or partially satisfies statement of claim. One or more claims are then considered fully or partially established, which speeds up the litigation process or makes it completely unnecessary.

At what stage can claims be recognized?

Partially, the claims of one of the parties may be recognized until the moment when the judge has gone to the deliberation room to make a final verdict. After the decision has been announced, recognition of the claim by the defendant in civil proceedings is meaningless, since the requirements are either satisfied automatically, or the judge decides that they are unfounded and refuses the plaintiff.

Terms of consent or refusal

Even if the defendant agrees to recognize the claims of the other party, the court may refuse to do so if:

• these actions violate the law and infringe on the rights of other citizens or organizations;
• such actions were the result of misleading the defendant;
• one of the parties deliberately deceived the other or forced to make such a decision under the threat of violence;
• circumstances that are relevant to the case under consideration were deliberately concealed.

Note! The judge must necessarily warn the defendant of the consequences of making such a decision.

All claims with which the other party agrees must be specifically listed and reflected in the court record.

Registration of recognition

Registration procedure

The legislation does not define specific requirements regarding the procedure for recognizing a claim, but establishes the rules in accordance with which minutes of court sessions should be drawn up. The judge, before making his decision to satisfy the refusal, is often guided by the existing jurisprudence and decisions of higher authorities.

Registration of partial recognition

Partial cancellation can be done in two ways:

• What the defendant agrees with, he says orally. This is recorded in the court record, which is kept by the secretary of the meeting. After that, the person who acknowledged the claims puts his signature and indicates the date.
• The defendant prepares a written statement in advance. It is attached to the case file. The application must clearly and in detail set out all the requirements with which the respondent agrees, as well as those that the judge will consider further. If a material claim is brought, then the defendant must indicate with what amount he agrees and what he refuses to pay.

Important! If the interests of the second party are represented by a lawyer or a lawyer, then he can also carry out the procedure, but for this he must have a formalized power of attorney to perform such actions.

The procedure for drawing up an application for recognition of a claim

The form of such an application can be found on the Internet, asked at the court office, or obtained from a practicing civil lawyer.

The statement states:

• address and full name of the parties;
• document name (centered);
• information relating to the particular case and the reasons on which the consent was based;
• the specific requirements that have been recognized and their scope;
• notifying the court of the consequences of actions related to consent;
• the date of the application and the signature of the applicant.

Application example

Consequences for the defendant

A person who has expressed his consent orally or in writing is obliged:

• voluntarily fulfill all the requirements stated in the statement of claim;
• unconditionally comply with the decision of the judicial authority;
• refuse to challenge the judgment in the future.

Important! The above circumstances come into force after the completion of the trial and are subject to mandatory execution.

If the defendant or his representative cannot provide reasonable arguments testifying to innocence, then the refusal makes it possible:

• soften the verdict of the court;
• get a real delay in the execution of the decision, if it is of a material nature;
• suspend or completely terminate legal proceedings and conclude an amicable agreement between the parties.

If, for example, a claim is being considered in relation to an individual entrepreneur or is related to issues of violation of tax laws, then compliance with the requirements may entail not only administrative, but also criminal liability. In this situation, the defendant needs to carefully weigh all the arguments of the plaintiff. If they are justified and subject to satisfaction by the court, then in case of disagreement with the statement of claim, more serious sanctions may follow.

On a note! The disadvantages of such a step after the parties have agreed to conclude a settlement agreement include the defendant's refusal to fulfill his obligations. In this case, not a decision is made on the basis of Article 194 of the Code of Procedure, but a determination about, which is then more difficult to force to comply.

Duties of the judiciary

The minutes of the court session shall include:

• the plaintiff's statement about the refusal of the claims;
• recognition of claims by the second party or its representative;
• conditions for concluding a settlement agreement, which must be signed by both parties.

When submitting written petitions to the judicial authority for the recognition of a claim or the conclusion of a settlement agreement, the minutes of the court session indicate that these documents are attached to the case file.

If one party recognizes the demands of the other, the judge must explain possible consequences actions taken. If the consequences are clear to the defendant, then this is recorded in his written statement or reflected directly in the minutes of the meeting.

If the written application does not contain the consequences of the actions taken, provided for by law, then they must be explained by the judge when considering the case. Failure to fulfill these obligations by the court is considered a significant violation of procedural norms, which may become the basis for the cancellation of the court verdict by a higher authority.

Protocol

Is it possible to challenge the consent to the claim

If the defendant admitted the claim, then later it will be possible to challenge these actions only by filing an appeal. The main argument in this case may be the involuntariness of the actions taken.

The higher court in this case checks:

• there were or were no conditions for agreeing with the statement of claim;
• there were or were no circumstances forcing the person to consent;
• whether the defendant had illnesses that prevented him from understanding the meaning of his actions;
• whether the court warned about the consequences of such actions.

Thus, it is possible to recognize the claim during the consideration of claims. For this, there is a procedure provided for by the Code of Civil Procedure of the Russian Federation. A sample application for recognition of claims can be requested directly from the judicial authority. Cancellation of recognition is possible only in exceptional cases, which must comply with the law and will not violate the rights and legitimate interests of other citizens.

Judicial consideration of the case is impossible without the parties, they are considered to be its main defendants and, naturally, the law gives them some kind of competence. In particular, the parties have the right to perform various administrative actions, one of which is a petition for recognition of the claim.

Recognition of a claim as a legally significant event is regulated by Art. 39 Code of Civil Procedure of the Russian Federation. It should be understood that this is the absolute consent of the defendant addressed to the court with all the requirements of the plaintiff or a third party, expressed in the form established by the procedural rules.

Formalities of the procedure

An application for recognition of a claim may be oral or written. In the first case, the voiced demands are subject to entry into the protocol of the court session, in the second case, they are attached to the case materials and this event is also recorded in the protocol.

The declared written recognition of the claim is drawn up in the same way as ordinary claims. The standard sample of an application for recognition of a claim must contain, in addition to the mandatory information, also information about why the defendant considers the claims legitimate and wants to satisfy them.

Separate nuances of legal proceedings

1. The court explains to the parties the legal consequences of recognizing the claim and does not accept it if it is contrary to the law or infringes on the interests of other persons. In this case, an appropriate ruling is issued, and the case is considered further on the merits.
2. The Court, relying on the indication h. 4 Article. 198 Code of Civil Procedure in the motivational part of the decision, fixes this circumstance and satisfies the plaintiff's requirements without analyzing the evidentiary basis and the explanations presented.

Depending on the nature of the legal relationship, the administrative action in question is used in court proceedings to quickly resolve disputes between subjects and is aimed solely at realizing the legitimate interests of the participants in the process in one of the legal ways.

Each of the participants in the trial has certain rights and obligations. One of the defendant's rights is the right to recognize the claim. When the statement of claim considered in court is fully recognized by the defendant, the court does not need to consider the circumstances of the case in detail, it can make a positive decision only on the confession of the defendant. In a civil case, such testimony is called an admission of a claim, and if in a criminal process the accused admits his guilt, this is called a case in a special order, and these cases give the court the right to make a positive decision in favor of the plaintiff.

You will learn more about how exactly the claim is recognized, what it is, and what are the consequences of these actions, in the published article.

What it is?

An acknowledgment of a claim is the consent of the defendant to the requirements stated by the plaintiff in the lawsuit. There are two types of acknowledgment of claims:

• Complete;
• Partial.

But, in any case, if a person recognizes the claim, the court will satisfy it, but whether it completely depends on what the defendant admitted and what was established during the trial. Since the defendant may give his consent at any stage of the proceedings, it may already be partly considered by the court, and something may be established during the trial. Further establishment of circumstances loses its meaning, after the consent of the defendant with the requirements, thereby speeding up the trial and simplifying the work of judges.

Info

Recognition by the defendant of the claim may not be accepted by the court if it violates the law. The confession must be given voluntarily, the defendant must be warned of the consequences of agreeing to the claims, and the defendant must list all the claims with which he agrees. The defendant must list: whether he agrees with the circumstances presented by the plaintiff in the claim, and also object if he does not agree with some of them.

Procedure

In order to make a positive decision in favor of the plaintiff, when the defendant agrees with the requirements, the defendant must draw up an application to the court for recognition of the claim. When it is filed with the court, it is considered that there was a full recognition of the claim by the defendant. Of course, in order for the defendant's statement to be accepted, the court must consider that it does not contradict the law, does not violate anyone's rights, and was written by the defendant voluntarily.

After the court accepted the application of the defendant. He terminates the proceedings and proceeds to decide the claim in favor of the plaintiff. After the application for recognition of the claim is accepted, the court ceases to consider the evidence in the case. The defendant may confess at any time during the proceedings before the court.

Info

The fact that the defendant agreed to the claims is recorded in the court record, and the application is attached to the case file.

In order for the court to understand whether an application for recognition of claims was voluntarily drawn up, the judge interrogates the defendant. In the interrogation, the judge should find out and check the following factors:

• The reasons why the defendant admitted the claim;
• Are there any conditions for the recognition of a claim;
• Are there any circumstances that forced the defendant to do this;
• Does he have any diseases due to which he does not understand the meaning of these actions;
• Whether the defendant understands the content of the claims and the consequences of the confession.

If it turns out that the defendant is forced to admit the claim, then such recognition will not be accepted, and the case will be considered in the usual manner. All questions and answers put by the judge to the defendant and received from him must be noted in the protocol.

Attention

An amicable agreement may be concluded between the parties if the plaintiff agrees with the recognition by the defendant of the claim under the condition, but in the case of voluntary fulfillment of the requirements under these conditions. If there are several defendants in the case, agreement with the claim of one of them violates the rights of others, so the case will be considered in the usual manner.

Sample

You can download a sample application to the court for recognition by the defendant of a claim in a civil case on the Internet or take it from the court office. And on our website below you can find a statement drawn up by lawyers, taking into account the latest changes in the current legislation. There is no specific sample application by law, so you can use this form.

The heading of the application indicates: where and from whom it is sent. In the center of the document, its title is indicated: “STATEMENT on the recognition of the claim by the defendant”, and then information is indicated on the case and the parties to the claim that are involved in the proceedings, the reasons for recognizing the claims and an indication of the specific requirements and their scope with which the defendant agrees.

Then, the legal grounds referred to by the defendant, acknowledging the claim, are indicated, and he agrees that he knows the consequences of actions to accept the claim, and he is ready to accept them. At the end of the application, the date of compilation and the signature of the defendant is put.

Sample

IN _________________________
(name of court)
Respondent: ___________________
(full name, address)

Declaration of acknowledgment by the defendant

The court is proceeding with the case on the claim of _________ (name of the plaintiff) to _________ (name of the defendant) about _________ (indicate what the plaintiff requires).

Due to the fact that the claims of the plaintiff are justified, I recognize the claims in full.

The provisions of Articles 35, 39, 173 of the Civil Procedure Code of the Russian Federation that the court accepts the recognition of the claim when this recognition does not contradict the law, does not violate the rights and legitimate interests of other persons, that when the court accepts the recognition of the claim, the court makes a decision on satisfaction claims, I know.

Date of application: "___" _________ ____ Signature _______

Consequences

At the end of the questioning of the defendant in court after filing an application for recognition of the claim, the judge must explain to him the consequences of the actions taken. The defendant's understanding of the consequences is then recorded in the court record. The judge informs the defendant of the following consequences of agreeing to the claim:

• Satisfaction of claims with which the defendant agrees;
• Lack of opportunity to appeal the decision;
• The court decision will record that the citizen recognized the claim.

At the same time, if a citizen agrees with only a part of the circumstances and claims specified in the claim by the plaintiff, he must convey this idea to the court. For the defendant may adhere to his legal qualification of the facts and insist on the application of a different law than that which the plaintiff requires. If the defendant admits the claim in full, he will no longer be able to demand that the claims be changed, so this should be thought about in advance.