The claim is the concept of content. Court ruling. The concept of a claim in the arbitration process, its elements and types
Statement of claim - Procedural document, with the help of which the right to appeal to the economic court is being implemented.
Representation of the claim It is a form of realization of the right to lawsuit. To file a lawsuit - it means to apply to the economic court with a statement in which the request addressed to the court should be considered on the consideration of the dispute about the right that arose.
The lawsuit is determined in legal literature as a claim for the protection of their or foreign law or a law protected by law.
Appeal to the economic court is carried out in the form of a claim in disputes that arise from economic legal relations.
Economic procedural law Disasters the concept of "claim" in the procedural and material sense. The lawsuit in the procedural sense is to see the first instance requirement to protect their rights and interests. In this aspect, the lawsuit is a means of establishing a business process. The lawsuit in the material sense is the right to meet their claims.
Iskame elements - Its structural components, which cumulatively determine its content. Highlight two claims:
- a) the subject of the claim;
- b) the basis of the claim.
Having elements of claim matters in the question of preventing the presentation of identical lawsuits - between the same parties on the same subject and from the same grounds. Representations of the claim identical with what is already considered by the court is not allowed. If such a lawsuit is filed in court, then in accordance with Art. 62 GPC The economic court refuses to accept the claim if in the implementation of the economic court or another body, which within its competence solves the economic dispute, is to the right of the dispute between the same parties, about the same subject of the same grounds or there is a solution of these bodies From such a dispute.
Claim As the requirements for the protection of the violated or disputed law or the law protected by law is a way to protect this right or interest. The basis of the claim is the facts that justify the requirement for the protection of law or legitimate interest. Only legal facts include the reasons for the claims, that is, those with which the norms of substantive rights associate the emergence, change or termination of the rights and obligations of the subjects of the controversial material legal relationship. There are actual and legal (legal) basis of the claim.
Determining the subject of the claim as a way to protect law or interest, attention should be paid to the list of ways to protect civil law and interest set out in Art. 16 Central Committee. Ways to protect civil rights and interests can be:
- 1) recognition of law;
- 2) recognition of a legal transaction invalid;
- 3) termination of action that violates the right;
- 4) the resumption of the situation that existed before the violation;
- 5) Forced fulfillment of duties in nature;
- 6) a change in legal relationship;
- 7) termination of legal relations;
- 8) damages and other methods of compensation for property harm;
- 9) reimbursement of moral (non-property) harm;
- 10) recognition of illegal decisions, actions or inactivity of the authority of state power, the authority of the Autonomous Republic of Crimea or the local government, their officials and officials.
The court can protect civil law or interest in a different way, which is established by the contract or law.
Article 20 of the Civil Code establishes that each business entity and the consumer has the right to protect their rights and legitimate interests. The rights and legitimate interests of the noted entities are protected by:
recognition of the presence or absence of rights;
recognition of fully or partially invalid acts of state authorities and local governments, acts of other subjects, which contradict the legislation, infringe upon the rights and legitimate interests of the business entity or consumers; recognition of invalid economic agreements from the grounds predensed by law;
renewal of the situation that existed before violation of the rights and legitimate interests of business entities;
termination of actions that violate the right or create a threat to his violation;
award to the fulfillment of duties in kind;
damages;
application of penalties;
application of operational and economic sanctions;
application of administrative and economic sanctions;
establishment, changes and termination of economic legal relations;
in other ways foreseen by law.
It should be distinguished by the concept " claim"And" statement of claim"Yes, the statement of claim may contain several lawsuits. The lawsuit may change (changing the subject, reasonable claim), the lawsuit as a written form of claim remains unchanged.
Statement of claim - This is a document established by the procedural law of writing and content in which the plaintiff sets out the material and legal requirements for the defendant.
The form of the claim is characterized as written, which is one of the guarantees of the right of the plaintiff and the defendant to judicial protection. This written document should contain information: about the name of the Court to be submitted; The name of the plaintiff and the defendant, their place of residence, if the organization acts as an plaintiff or the defendant, then its location; the name of the representative and its address, if the application is filed by the representative; the facts on which the plaintiff bases its claim, and evidence, confirming them; facts indicating violations or threat of violation of the rights, freedoms and legitimate interests of the plaintiff; the price of the claim if it is subject to the assessment, as well as the calculation of the accumulated or disputed monetary amounts; Compliance with the pre-trial procedure to appeal to the defendant if it is provided.
In addition, telephone numbers, faxes, email addresses of the plaintiff, his representative, the respondent are listed in the claim, and any other information that is important for the correct consideration and resolution of the dispute is listed.
Some features are peculiar to the claim for the prosecutor in defense of the interests of the Russian Federation, its subjects, municipalities or to protect the rights and freedoms of an indefinite circle of persons. The prosecutor is obliged to emphasize in his own written written, what exactly is the violation or challenging of rights and interests and what law they provide. If the prosecutor turned to the defense of the rights of a citizen, then it is necessary to substantiate, for what reason personally, a subjectively interested person cannot apply to the court on his own, or to point out a citizen to the prosecutor (part 3 of Art. 131 Code of Civil Procedure).
The statement of claim is attached: its copies in accordance with the number of respondents and third parties; a document confirming the payment of state duty; power of attorney or other document certifying the powers of the representative of the plaintiff; Documents confirming the circumstances on which the plaintiff basses its requirements, as well as copies of these documents for the defendant and third parties; the text of the published regulatory legal act in the event of its challenge; evidence indicating the fulfillment of the mandatory pre-trial order of settlement of the dispute; Calculation of a collective amount of money with copies for the defendant and third parties.
The statement of claim is signed by the plaintiff either by his representative, but only if he has the authority to this action.
The presence of any flaws in the point of view of form and content makes it legally insignificant, and therefore the court should make the definition of leaving the claim without movement.
The current ICP allows personal appeal to the court with a claim or by sending by mail, unlike an APC, which allows the plaintiff to submit the necessary documents in electronic form by filling out the forms posted on the official website of the Arbitration Court in the information and telecommunications Internet. For this, person is registered in the Electronic Guardian system, and the person registered when submitting documents through the creation of his account forming the "Personal Account" is a user of the document submission system. In order to optimize the electronic circulation to arbitration courts by order of the Supreme Arbitration Court of the Russian Federation of January 12, 2011 No. 1, the temporary procedure for submitting documents to the Arbitration Courts of the Russian Federation in electronic form was approved.
- The Constitutional Court of the Russian Federation by the definition of 18.12.2003 No. 474-0 "On the refusal to accept the complaint of a complaint of the Chumakov citizen Alexander Vladimirovich to violate its constitutional rights of Article 132 of the Civil Procedure Code of the Russian Federation" confirmed the constitutionality of Art. 132 GPK, requiring to apply to the lawsuage, documents confirming the circumstances on which the plaintiff basses its own legal requirements.
The study of the concept of the claim should begin with the analysis of the essence of the claim.
The controversial requirements to be considered within the framework of the procedural form are called claims. The claim form is the most adapted for the correct consideration and resolution of disputes with the decision. The main features of the claim for the protection of the right are studied quite in detail in the procedural science of black I.I. Commentary on the Civil Procedure Code of the Russian Federation / S.A. Alekhina, A.T. Bojerner, V.V. Blanev and others; Ot. ed. M.S. Shakaryan. M., 2007. P. 299. and are as follows: the procedure for consideration and resolving civil cases is consistently determined by the norms of civil procedural law; Persons participating in the case have the right personally or through their representatives to participate in the consideration of the case at a court session; Persons participating in the case, the law provides sufficient legal guarantees that give them the opportunity to influence the course of the process and seek to make a legitimate decision; The claim is competent.
The right to judicial protection is one of the most important subjective rights of citizens and organizations protected by law. Violation of the right of stakeholders to judicial protection, their rights and legitimate interests is the basis for the cancellation of the court decision. The choice of a method for protecting civil rights belongs directly to citizens and legal entities.
The claim for the protection of law exists not only in civil proceedings, its main features are inherent in the arbitration process. The lawsuit of the protection of law can be said and applied to the arbitration proceedings. The consideration and resolution of the dispute in the arbitration court occurs with the necessary legal guarantees of compliance with legality, and the parties have equal procedural rights federal law of July 24, 2002 "On the Arbitration Courts in the Russian Federation" (later. Ed.) // ATP "Consultant Plus "in Sost. for 20 Aug. 2012 in the law of the Russian Federation of July 7, 1993 "On International Commercial Arbitration" (later. Ed.) ATP "Consultant-Plus" in Sost. for 20 Aug. According to the presentation of the claim, the claim, the claims, the objections of the defendant on a claim equally to the parties (art. Art. 8, 23, 18) Despite the increase in the number of proceedings, the main and indisputable existence of three types of legal proceedings remains: of the statement, production on cases arising from public legal relations, and special production // Degtyarev S.L. Types of production in the modern civil and arbitration process // Arbitration and civil proceedings. 2007. №8. P. 34 ..
The controversial material and legal requirement of one person to another to be considered in a certain procedural procedure is called a claim. The lawsuit is a procedural means of protecting the violated or challenged right inherent in the form of legal proceedings. Software is a universal right tool. By its essence, it represents a complex phenomenon in which two sides should be distinguished: material and legal - the claimant's demand for the defendant and procedural-legal is the requirement of the plaintiff to ensure the protection of violated or challenged law. At the same time, the requirement for the court can not be accompanied by the demand for the defendant.
It is about the material and legal requirement of one person to another, about the claims is repeatedly indicated in the law and judicial practice of Rakitina L.N. Reducing the size of the claim at the initiative of the court: issues of reimbursement of costs for the payment of state duty // Arbitration and civil process. 2008. №10. P. 34 .. So, in the claim, the claim should be indicated to the defendant (part 4 of Art. 131 Code of Civil Procedure of the Russian Federation), the defendant has the right to present a counterclaim to the plaintiff (Art. 137 Code of Civil Procedure of the Russian Federation) The defendant to the plaintiff, declared for joint consideration with the initial claim. The counterclaim is presented by the defendant to protect against the original claim. Showing a counterclaim, the defendant seeks to reject the claims of the plaintiff or the test of its requirements. See: Popov V.V. ABC of the counterclaim // Arbitration and Civil Process. 2008. №4. P. 34 .. upon presentation of a demand for several plaintiffs or to several respondents, the judge has the right to allocate one or more claims into separate production (part 3 of Art. 151 Code of Civil Procedure of the Russian Federation). The claimant is referred to in Part 4 of Art. 132 Code of Civil Procedure of the Russian Federation, where it is said that the plaintiff should attach the documents to which he bases its requirement. When the plaintiff refuses the claim, he refuses not to appeal to the court, namely from his demand for the defendant. If the court decides to ensure the claim, this is a question to ensure in the future the implementation of the material and legal requirement of one person to another.
The definitions of the claim contained in the literature are only as the means of excitation of the process or as a means of treatment for the protection of law are not exact and do not disclose its contents of the indication of disagreements about the concept of the claim and its elements that existed in the Civil Process Theory, see: Vaskovsky E.V. The textbook of the Civil Procedure / Ed. V.A. Tomswing. M., 2003. P. 603 .. These definitions do not degrade the claim from other appeals to other states of the state or appeal to other types of civil proceedings (a statement or a complaint of special production and production cases arising from public legal relations). Appeal to the court or other jurisdictional authority will be claimed only if it is accompanied by a requirement for the other side and the court on the consideration of the case in a certain statement of claim.
Claims are such requirements when a dispute arose between the plaintiff and the defendant in connection with the violation or challenge of subjective law and the parties did not allow it without the court intervention, but were transferred to its consideration and permission. The entire lawsuit is devoted to checking the validity of the claimant's claim to the defendant, and if it is reasonable, then to satisfy this requirement about the concept of a claim as the demands of one person to another have repeatedly indicated in the writings of Russian scientists. So, the famous Russian proceduralist E.V. Vaskovsky wrote: "In accordance with the procedure of production, the requirements declared by one persons against certain individuals are subject to verification." In addition, he pointed out that "the court establishes the legality of the claimant's claims in relation to the defendant." See: Vaskovsky E.V. Decree. cit. Pp. 156, 346, 349, 350; Civil Procedure / Ed. V.V. Yarkkaya. M., 2004. P. 256 - 257 .. otherwise, the court refuses to suit. The court refuses not to appeal to the court, namely, in the claimment of the plaintiff to the defendant, since the appeal was already held and the judge took the claim. If there is no claimant's demand for the defendant, then there is no claim.
The uniform concept of the claim and its two parties are stated in the scientific literature: "The unified concept of claim seems to be more correct and scientifically substantiated. Such concept of claim meets both legislation and judicial practice" Black I.I. Commentary on the Civil Procedure Code of the Russian Federation / S.A. Alekhina, A.T. Bojerner, V.V. Blanev and others; Ot. ed. M.S. Shakaryan. P. 300 .. This is a single concept that has two sides: material and legal and procedural-legal. Both sides are in an inseparable unity. If otherwise we consider the lawsuit, then it is impossible to understand the legal nature of such institutions as a counterclaim, the compound and disconnection of the claims (Art. Article 137, 151 of the Code of Civil Procedure of the Russian Federation, etc.).
The lawsuit should be considered to be counted for consideration and permit in the procedural procedure, the material and legal requirement of one person to another resulting from the controversial material and legal relationship and based on certain legal facts.
The elements of the claim characterize its content and legal nature. The lawsuit consists of two elements: subject and base. The law and judicial practice of these two elements exhaust the content of the claim as a single concept. In training literature, there are different points of view on the issue of claims, their essence, maintenance and number, for example: civil procedural law / Ed. M.S. Shakaryan. M., 2004. S. 199 .. The law states that the change in the claim occurs according to its subject and the ground (Art. 39 Code of Civil Procedure of the Russian Federation). These elements are important to determine the scope of the claim upon presented. They establish the direction, the move and features of the trial for each process.
Civil procedural legislation establishes that the claim should indicate the claimant's claim to the defendant and the circumstances on which the plaintiff basses its requirement (Art. Art. 131, 151 Code of Civil Procedure of the Russian Federation). In connection with this subject, the claim is the specific logistical requirement that the plaintiff places the defendant and relative to which the court must make a decision on the case. In addition to the subject matter, there is a so-called material dispute object, which can be a specific thing, the subject, the money amount to be transmitted, recovery. The material object of the dispute is included in the claim. In particular, when it comes to increasing or decrease the amount of claims, the quantitative side of the material object of the dispute changes, and not the subject of the claim.
The basis of the claim is legal facts Legal facts - circumstances that create, changing the rights and obligations of the Parties or preventing rights and obligations (Isakov V.B. Legal facts in Russian law. M., 1998. P. 2)., On which the plaintiff Based the material and legal requirement for the defendant. According to paragraph 5 of Art. 131 Code of Civil Procedure of the Russian Federation in the claim should indicate the circumstances on which the plaintiff basses its demand for the defendant. The basis of the claim is what plaintiff displays his demands on the defendant. Such legal facts may be: concluding a contract, marriage and its registration, causing harm. In most cases, the basis of the claim is a complex actual composition when it includes several legal facts that form the basis of the claim. You can agree with the definition of the basis of the claim as circumstances, of which the claimant's claim implies, in which the plaintiff is based on Karhalev D. Subjective right to defense // Lawyer. 2008. №1. P. 45 ..
All legal facts make up the actual basis of the claim. In addition to the actual basis of the claim, the legal basis can also be distinguished. Turning to court, the plaintiff expects that his subjective right will be protected. However, in order for its requirement to be satisfied, it is necessary to establish this requirement not only on facts, but also on the relevant norm of law. You can protect only the requirement that is based on the law. This means that, in addition to legal facts, it should be established and the material and legal norm constituting the legal basis of the claim Vaskovsky E.V. Decree. cit. P. 350 ..
It is impossible to disagree that every requirement considered by the court must be directed against a certain person, based on specific actual and legal data. Code of Civil Procedure of the Russian Federation does not contain instructions on the need to refer to the legal basis of the claim in the claim. However, in other regulatory acts, which refers to the content of the claim, indicates the legal basis of the claim. Thus, the legal basis of the claim says in the Arbitration Procedure Code of the Russian Federation (hereinafter - the APC RF), § 9 of the regulations of the International Commercial Arbitration Court http://www.unodc.org., In Art. 23 Regulations of the Arbitration Court to resolve economic disputes under the Chamber of Commerce and Industry of the Russian Federation http://www.unodc.org. and etc.
There is a logistics and procedural classification of lawsuits. The material and legal nature of lawsuits is different. The difference is manifested in the fact that claims may differ from each other by the nature of the controversial relationship and the claim with which the plaintiff appeals to the defendant. The material and legal classification of lawsuits allows you to correctly determine the direction and amount of judicial protection, the progressiveness of the dispute and its subject, and also identify the specifics of the procedural characteristics of this dispute.
By nature, the procedural goal of all lawsuits is one. It consists in protecting the violated or challenged subjective right of the plaintiff. According to the procedural goal of claims are divided into claims: a) about award; b) recognition. A detailed study of these species is beyond the scope of the topic under consideration. Here we only note that the statements about the award are the most common in judicial practice. In the claims of awarding the plaintiff, referring to the court for the protection of his right, asks to recognize his controversial right for him, and in addition, to award the defendant to commit certain actions or to abstain from their commitment, and the appointment of claims for recognition is to eliminate The controversy and uncertainty of law claims, or institutional claims, existed already in the Roman civil process called "Prejournal Iska". See: Novitsky I.B. Roman law. Textbook. M., 1998. S. 111 ..
In addition to claims for recognition and lawsuits about the award in legal literature, it is indicated for the emergence of group claims or lawsuits in defense of an indefinite circle of persons and indirect (derivative) lawsuits. The basis for the classification of these lawsuits, according to some authors, is the nature of the defended interests of Abolonin G.O. Group claims. M., 2001. P. 21 - 23 .. Supporters of this position indicate: "Group claim is a kind of synthesis of two procedural concepts - complicity and representation" Wheels of PP Group claims in the United States. M., 2004. P. 13 .. However, the proposed classification of lawsuits did not receive a proper scientific justification. It is impossible to disagree that "substantial clarifications require the theory of indirect (derivative) lawsuits," as well as the theory of corporate "group" cues of Osokina G.L. Course of civil proceedings of Russia. A common part. Tomsk, 2002. P. 89 - 103 .. so., The division of lawsuits into two species is exhausted by the classification of lawsuits on their procedural goal.
So, the statement of claim is an important means of initiating the process on a specific dispute. According to the law, any interested party may apply to the court for protecting the violated or challenged right. Such an appeal and is made called the presentation of the claim.
According to the Constitution, every citizen of the Russian Federation can count on protection in court. In disruption of its freedoms and interests, the subject can send the requirement to restore them. The refusal to apply to the court is wrong with. Claims of the person are formulated in a lawsuit. Consider further detail what it is. Samples of claimsalso will be presented in the article.
General
In case of violation of the rights and freedoms of citizens, the right to their defense arises. As a state agencies, providing the restoration of infrainment of interests, is the court. If we consider, it is a means of activating the activities of the authorized instance. The order, within which the interests of the subject is protected, is referred to as legal proceedings. It participates the plaintiff, the defendant, the prosecutor, third parties.
Subjects
The plaintiff may be both the physical and organization. This subject expresses its claims in case of violation of any of his interests. The defendant, respectively, is a member of the production involved in the answer. Third parties can perform on any side. Some such subjects may express independent claims to any of the dispute participants.
The concept of a claim in the arbitration process, its elements and types
Interested subject, wanting to restore his interests, turns to court with the relevant claim. The concept of the claim should be considered through its structure. It is worth saying that two approaches to the study are used in the literature.
According to the first, it is formed according to its content, the ground and subject. The second approach provides for only the last two components. Most lawyers agree that in the structure it should be allocated not only the subject and grounds, but also the content. In this case, the clearer formulation is acquired concept and signs of the claim. The latter, in turn, act as classification criteria.
IKSS are divided by material and legal and procedural laws. In practice, the following classifications are used. According to the first criterion, there are vinticational and negative claims, according to the second - claims for awarding, recognition, change / termination of legal relations. Their design is carried out in accordance with the standards of the agro-industrial complex. It also includes these components. Within the framework of this production, complaints are carried out on the CCP.
Considering, let's stop more on its essence. The content of the claim is the actual action of the court, the implementation of which is asked by an interested person. It is determined by the applicant himself. In this case, the subject uses funds provided for in the law. The claim imposed by the plaintiff can be directed to:
- Impact the defendant for a certain action / inaction. For example, it can be compensation for a loss incurred, payment of the sum of money, etc.
- Recognition of existence or lack of legal relationship, duties or rights.
Thing
As it can be an interest that is protected by legislation, as well as in general, a specific legal relationship. The subject must be distinguished from the first concept more volume. The claim is included in the subject of the dispute.
Base
It is formed the circumstances that the plaintiff indicates. With them, he connects his claim as legally significant facts. As a foundation, a transaction, a contract, causing damage, an occurrence of a specified period or any conditions may appear. As a rule, it is not present in it, but several facts. Their aggregate corresponds to the hypothesis of the norm and is called the actual composition of the dispute.
Specificity
The concept and legal nature of the claim Formed by the close relationship of its components. The facts that make up its foundation are summarized under the hypothesis of the corresponding material norm. These circumstances indicate the legal nature of a relationship acting as an object of claim. He, in turn, determines the content. What is subject to protection determines the form of protection. For example, monetary compensation or the provision of things are provided by the award, the absence / existence of a relationship - recognition and so on.
Concept and types of lawsuit
The award claim is aimed at the compulsory fulfillment of the responsibility of the defendant confirmed by the court. As an item in this case, the right of claimant will require a certain behavior from the second member of the dispute, due to the non-fulfillment of their commitment in a voluntary basis.
The grounds for registration of such a claim are primarily the circumstances with which the emergence of the legal possibilities itself is associated. For example, the activities of the furniture manufacturing enterprise, the work of the artist for creating a picture, etc. In addition, the grounds are the facts that the appearance of the right to submit a claim is associated. This may be the offensive of the agreed period, violation of interest (for example, administrative lawsuit).
The concept of content is associated with a lesing part of the document. The claim may be aimed at confirming any relationship or rights. In this case, they talk about a positive lawsuit. If the claim is aimed at confirming the absence of a legal possibility or relationship, it is referred to as negative. Converably called a claim that implies a change / termination of the applicant's interactions and the defendant. As an item in this case, the possibility of an interested person will unilaterally get out of relationships. For example, a requirement to terminate the contract can be submitted.
The grounds are facts having a dual value. First of all, these circumstances are associated with the emergence of that relationship, which is subject to termination / change. In addition, there are facts on the basis of the possibility of implementing the conversion authority.
Windiculture
The concept of a claim may be considered within the framework of material norms. One of the most common means of protection in court is VinDikation. It implies the presentation of a claim for the recovery of material values \u200b\u200bfrom illegal use. WINDICATION SUBLICATIONS - Non-Study Requirement, which does not own a thing, to the actual owner.
Conditions
For presentation of the WINDICATION REQUIREMENT, a number of rules stipulated by law must be compliance. First of all, the title owner must be deprived of things. That is, the object should leave its possession. It is also necessary that the property that the owner lose is preserved in nature and was in the actual possession of another subject. If the thing was destroyed, processed, used, then the right of ownership stops. In such a situation, the title owner can only count on protecting property interest. He has the right to make a requirement for compensation for harm or unreasonable enrichment.
Explanations
Features of illegal ownership are determined in Art. 301 GK. In accordance with the norm, it may not only be the owner, but also another subject that owns a thing under the law or a contract. For example, they may be a tenant, a commission agent, the keeper. The possibility of sending a vocational law is also the possibility of the owner of the property rights to property management, lifelong ownership, economic management.
Disguise on income
As part of the consideration of the Wing Costa, there are often issues related to the fate of the profits received during the use of a thing of the illegal owner, as well as expenses incurred in connection with this. The rules on such calculations are fixed in the 303rd article of the CC.
The norm establishes the difference between conscientious and unscrupulous owners. The latter is imputed to compensate for the title owner of the whole profit from its illegal use. The conscientious owner must pay revenues only from the moment he learned either he could become known that the object is in his violation of the norms, or as he received a notice of the lawsuit.
Nuances
Applying in practice the 303rd article, the following circumstances should be taken into account. First of all, not only cash, but also natural products (harvest, for example) will be income within the norm. In addition, we are talking about the profit, which was obtained or could be recovered due to the illegal possession of property. The actual owner, in turn, may require the reimbursement of the cost of maintenance of things. In this case, this feature is both in good faith and in an unfair entity. The duty can be accumulated since the title owner received the right to receive income, illegally learned from use.
Negator complaint
Consider the claim. The Civil Procedure may address a dispute regarding the elimination of obstacles to implement the subject of its legal capacity to use, disposal and possession of material values. The basis for the beginning of such production is a negative complaint. This is the innovative requirement of the owner who owns things to a third party. The subject can request eliminate any obstacles, even if they are not associated with imprisonment to have an object. In this case, the requirement may be aimed at preventing probable violations if there is such a threat. In such cases, the interested party will not need to prove that the actions of the defendant impede the normal use and disposal of property if the latter himself does not confirm the legality of his behavior.
Procedure for compiling a claim
All samples are filled in general rules. Regardless of the type of legal proceedings, the content of documents must comply with the prescriptions of the legislation. So that the claim was accepted for production, it is necessary to properly compile it. The law establishes a list of mandatory details. These include:
The essence of the claim
The content indicates the time, the place of signing the agreement, its subject. The following is a condition that has not been executed. In the spontaneous part indicates the actual requirement. For example, "I ask to recover damages incurred in connection with the violation of contractual conditions, in full." At the same time, it is advisable to refer to the norms of the law, which provides for relevant responsibility.
In the list of applications may be present documents confirming the facts set forth in the lawsuit. This may be an instance of the contract, a receipt, invoice, certificate from the bank and so on. If the requirement is associated with compensation, it is recommended to make a calculation. It will justify the amount that the interested person asks as compensation. A receipt is applied to the claim confirming the payment of duty. If a representative is operating on behalf of an interested individuality or organization, he must make a power of attorney.
§one. The concept of the claim
In the explanatory dictionary of the Russian language S.I. Ozhegova and N.Yu. The Sweden statement is treated as a statement to a court or arbitration on the resolution of a civil dispute and is identified with the concept of "lawsuit".
Unfortunately, the law does not give a definition of the claim, so the article on this important legal topic has to start a reference to the explanatory dictionary.
However, the reader should not be disappointed in advance. The essence of the claim to the court (arbitration court) the authors of the dictionary outlined quite accurately. We will try to deepen in the subject of the article, based exclusively on legal sources.
There is no dispute: the addressing court is one of the main signs of the claim, which distinguishes him from the statements of another kind, since no state authority, except for the court, to consider the claim statements is not authorized (Article 131 of paragraph 1 of the Code of Civil Procedure).
The second inalienable sign of the claim in the dictionary is called the purpose of its submission to court - the permission of the civil dispute, i.e. A dispute arising from civil-related relationships (nr, o thing, oh, about causing harm, etc.).
And they will not argue with this statement, since not any statement, including a statement in court, is intended to resolve the civil dispute (dispute on the right of civil), the subject of which is a violation of either the threat of violation of the rights, freedoms or legitimate interests of the plaintiff.
The fact is that not only the claims are sent to the courts, but also other statements. For example, considered by the courts on the basis of the application, and not the claim; The statement, and not the statement of claim, is the basis for consideration by the court of a case on extradition.
Meanwhile, in contrast to the statement of claim, the purpose of statements in the special and ordinary work of the court is not the resolution of the dispute, but the establishment of the presence or absence of undisputed rights of the applicant, to confirm the confirmation of which he under the law requires a court decision (a declaration of marriage with him; recognition of the fact of finding A citizen on dependency for the appointment of his pension, etc.).
When establishing in the cases of this category, the dispute about the right court leaves the appropriate application without consideration and suggests the parties to resolve controversial relations in the claims of the Court (see, Nr., paragraph 3 of article 263 of the Code of Civil Procedure), which is regulated by subsection II of section II of civil procedural Code of the Russian Federation (hereinafter - the CCP).
For example, to recover undisputed (based on documents) of communal payments arrears applies to the issuance of a judicial order. Customized production is carried out by the judge without notifying the debtor and the calling of the parties to the court, which in principle excludes the dispute between the applicant and the debtor.
Meanwhile, if the debtor, who received a notice of a court order, disagrees with the order of his execution (arguing), the judge is obliged to cancel the order and offer the applicant to recover duty in the lawsuit of the court (Article 129 of the Code of Civil Procedure).
Civil dispute does not always be understood literally. Of course, the parties of the case, which are referred to as the plaintiff and the defendant in the claim, can directly argue about the amount of debt under the contract, remuneration for work and bring the arguments and evidence in favor of its position.
At the same time, the civil dispute is often recognized by the inaction of the debtor to fulfill the obligation in favor of the creditor.
So, the defendant who did not recognize the claim for the recovery of debt, stated a petition for the termination of the case in connection with the lack of a civil dispute, since he admitted a debt earlier and recognizes now.
He noticed the judge to this statement: "Why don't you give this debt? Retrieve the plaintiff debt, then the end of the end, and I stop it!"
Civil disputes most often arise between citizens and (or) legal entities consisting among themselves in relations, which are referred to as obligatory legal relations (obligations).
Obligations arise from civil and legal agreements (), the facts of harm, unjust enrichment (innovative obligations), other grounds provided for by the Civil Code of the Russian Federation (hereinafter referred to as GK) and other sources of civil law listed in paragraph 2 of Article 3 of the Civil Code.
For example, for the obligation that arose from the purchase agreement - sales, the buyer, who paid the seller the price for the thing, has the right to demand from him to transfer this thing to (), and the seller must fulfill this requirement.
If the seller fails to give a thing to a civil dispute arises, which gives the buyer a legal basis to apply for the protection of its violated right to the court with the requirement of the seller's challenge to the seller, which must be set out in the claim.
Not everyone named in the Civil Code requires obligations to be subject to judicial protection. Such requirements, for example, include the requirements related to the organization of games and bets and participation in them (). Therefore, to fulfill the fulfillment of the obligation that arose from participation in betting, it is impossible for submitting a claim to the court.
Refusing to participants in games and bet in the resolution of their disputes in court, the legislator, apparently, was guided by morally ethical considerations. It remains to be noted that agreements (contracts) devoid of claim (PACTUM) are known since the Roman law.
In the preparation of the statement of claim, it should be borne in mind that it may only be disposed of on civil legal relationship based on equality of the rights of its participants and regulated civil laws (Article 1 of the Civil Code).
Meanwhile, it is often legal disputes arise from administrative and other public relations, which equality of the rights of participants do not intend, are based on the principle of power - subordination and are regulated by the norms of administrative and other public law. To disputes arising from such relations, civil legislation does not apply (paragraph 3 of Article 2 of the Civil Code).
For example, the Tax authority requires a citizen to pay tax. Relations between the citizen and the tax authority are regulated by tax right. Therefore, if a citizen with the requirement of the tax authority does not agree, an administrative dispute arises, allowing it possible in the order of administrative proceedings by filing an administrative statement. The requirements imposed on such a statement are governed by the Code of Administrative Judging of the Russian Federation.
Apparently, it's time to summarize the concept of the claim, although it is possible to write about all its details indefinitely.
To make a decision on protecting your right by submitting a claim to the court, you need to remember a few simple (?) Things.
1. Between you and the face, which, in your opinion, violated or created a threat to the violation of your subjective right, an argument arose, since the violator of voluntarily restore this right does not want.
2. Violated right is the right of civil, which is contained in the sources of civil law listed in Article 3 of the Civil Code.
3. Protection of violated civil rights is carried out by the court, the Arbitration Court or the Arbitration Court in accordance with the subordination of cases established by the procedural legislation (Article 11 of the Civil Code).
4. Your demand for the defendant in the claim for restoring the right must comply with the methods of protection of civil rights, which are named in Article 12 of the GC (recognition of the right, restoring the situation that existed before violation of law, etc.). Requirements not provided for in Article 12 of the GC are not satisfying courts.
The concept of the demand for the respondent, which is referred to as the claim, will be discussed in the next paragraph.
§2. Concept of law
Ancient Roman lawyer Celsius called the lawsuit (Actio) the right to demand in court due, "what you should". This definition of the claim is still relevant and actually reproduced in the current GPC, which recognizes the claim for the claimant's claim, set out in the claim (p / p 4 of paragraph 2 of Article 131 of the Code of Civil Procedure).
For example, the claim is the claimant's claim for recognition of ownership of residential premises. It is clear that the material content of the claim depends on the specific dispute considered by the court. We will consider here only the general procedural issues related to the claim.
The claim is mandatory, but not the only part of the claim. In addition to the actual claim, it should contain other mandatory information (elements), provided for in Article 131 of the Code of Civil Procedure, an indication of the defendant of the claimant's rights, the circumstances of these violations, the evidence of their confirmation, etc.
Therefore, to put a sign of equality between the claim and the claim, as dear authors of the intelligent dictionary do, of course, should not.
Meanwhile, the concepts of "lawsuit" and "the statement of claim" have such a close relationship that their separate use in practical activity is legally meaningless.
Thus, the statement of claim that is not supplied with an element of the claim, legal consequences will not entail and will be left by the court without movement on the basis of Article 136 of the Code of Civil Procedure as a statement filed without complying with the requirements of Article 131 of the Procedure Code.
The absence in the claim claim (Claim), for example, about the displays the defendant in essence will turn this application in the complaint, the consideration of which is not allowed in order of claim.
Therefore, if the plaintiff does not follow the indication of the judge to supplement the claim, it is refunded to the plaintiff and is considered non-subference.
The same consequences will entail and submit a claim consisting of a claim that is not supplied with other binding elements of the claim.
Independent legal importance, the lawsuit acquires only in several cases listed in the CCP.
For example, paragraph 3 of Article 134 of the Code of Civil Procedure, it is prohibited to re-present a lawsuit, besides the defendant, on the same subject and the grounds if the court one has already refused to accept the claim in which such a lawsuit was kept (identical suit).
A similar prohibition is valid if there is a court decision on the identity claim, or the court decision on the termination of the proceedings in connection with the refusal of the claimant from the identity claim, or the previous court approved the settlement of the parties to the same claim.
In the cases, the claim is subject to independent analysis in order to identify its subject and grounds.
The subject of the lawsuit court practice recognizes the material and legal requirements of the plaintiff to the defendant (see, for example, the Resolution of the Presidium of the Supreme Arbitration Court of the Russian Federation dated April 21, 2009 No. 1598), and the basis - circumstances from which material and legal requirements arise.
In the case of the claim with the claim, the claim is the claimant's claim for the reflection of the respondent, based on the norms of financial law, namely on Articles 398 and 463 of the Civil Code of the Russian Federation.
The basis of the claim - circumstances, of which the claimant's claim led to the defendant. These are the circumstances of the conclusion of the contract of purchase - sales of things, non-performance of the contract by the defendant and evidence of these circumstances.
Thus, the subject and foundation of the claim have a direct logical and legal connection, which establishes the court if necessary, has a procedural opportunity to eliminate the duplication of the claim.
§ 3. The content of the claim
Mandatory requirements for the content of the claim are set out in the law (Art. Art. 131,132 GPC). They should be guided during the preparation of the application.
On the next page of the site, we will list these requirements, we will give some of them comments and try according to the rules of articles 131 and 132 CPC
