Sample petition for consent with a claim. How to make an application for recognition of claims? The consequences of the recognition of the claim

Recognition of a claim - the consent of the defendant with the claimed claimant's claims, which, as a rule, leads to a decision to satisfy the claim.

Recognition of the claim by the defendant can be committed in court on various massessment: the unreasonableness of the defendant's objections and (or) the conviction in the fairness of the claimant's claims, the full or partial voluntary refusal of the defendant from the subjective right in favor of the plaintiff, the reluctance to continue the dispute and others.

Recognition of the Court in Court: General

Recognition of the claim is distinguished by form and content. In form - it can be a separate written statement of the defendant or oral.

Recognition of a claim declared by a statement in writing is attached to the case, which is indicated in the minutes of the court session. Recognition of the claim declared by the defendant orally is entered into the minutes of the court session. The record in the troubles record is confirmed by the respondent's signature.

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

Simple confession - unconditional agreement with the case filed.

A qualified, on the contrary, is always made with reservations that do not allow the claimant's demand indisputable. For example: the defendant in court recognizes the presence between it and the plaintiff of the loan agreement, but it claims that he returned the investigative amount without receiving a receipt from the plaintiff confirming the return of funds.

Recognition of the claim should be distinguished from recognizing the circumstances on which the other Party establishes its requirements or objections (part 2 of article 68 of the Code of Civil Procedure of the Russian Federation). For example: the defendant recognizes the conclusion of the transaction, but does not recognize the amount of debt required by the plaintiff.

Recognition of the claim as the unilateral action of the respondent should also be distinguished from the settlement agreement. In connection with these parties, the process should be attentive when making their agreements.

For example: if, according to the conditions contained in the World Agreement, the defendant in full, certainly recognizes the requirements of the plaintiff and undertakes to repay existing debt to the lender in the amount of the claim price, make out such an action by the World Agreement seems to be erroneous due to its explicit one-sided nature.

If the rights and legitimate interests of the defendant protects his representative in court and at the same time the defendant personally does not take part in the process, it should be noted that the recognition of the claim relates to individual procedural actions that the representative of them must be specifically specifically specified in the court.

The consequences of the recognition of the claim

Recognition of the claim is estimated by the court together with all the materials available in the case and, taking into account the circumstances found out in the court process.

The voluntary action is clarified by the respondent survey. During such a survey, the court establishes: the presence or absence of a claim recognition; No circumstances that are forced by the defendant to recognize a lawsuit; the presence of diseases that prevent the understanding of the value of procedural actions; Understanding the meaning of the content of the claims and the consequences of a procedural action.

Annotation: Lawyer College "Forum" (Khabarovsk) K.V. Bubon offers readers their arguments about the right of the defendant to recognize the claim. Also, the author draws attention to some legal consequences advancing if the defendant will take such a decision. The proposed work contains the assumption that the current civil procedural legislation does not take into account all the options for the possible legitimate behavior of the defendant.

Keywords: civil process; legality; right; human rights; recognition of the claim; plaintiff; defendant; Competitive process; third party; The purpose of civil proceedings;

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

It would seem that in the legislation, it is rare to meet something simpler than the right of the defendant to recognize the claim. All are well understood and legal consequences that occur if the defendant decides to take advantage of this right. However, if you carefully and thoughtfully reread the law, the questions will certainly arise.

For example: what exactly "recognizes" the defendant, accepting the appropriate decision? It is not worth a hurry with the answer, because here "options are possible." The text of the Civil Procedure Code of the Russian Federation suggests us that for the answer to the question, two heterogeneous categories one from another will have to be separated. In itself, the word "recognition" is used by the authors of the text of the GPC to designate different not coinciding with each other.

For example, in accordance with parts 2, 3 of Article 68 of the Code of Civil Procedure of the Russian Federation "Recognition by the Party of Circumstances, in which the other Party establishes its requirements or objections, frees the latter on the need to further proof these circumstances. Recognition is entered into the minutes of the court session. The recognition set forth in a written statement is attached to the case file. If the court has reason to believe that recognition is committed in order to conceal the actual circumstances of the case or influenced by deception, violence, threats, conscientious misconceptions, the court does not accept recognition about the court is made by the court. In this case, these circumstances are subject to evidence on general reasons. "

For comparison, I will give excerpts from the text of Article 39 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 this contradicts the law or violates the rights and legitimate interests of others."

It is obvious that we are talking about two different rights of the defendant. He is entitled to agree with how the plaintiff sets out the circumstances of the case (that is, to recognize the actual side of the claim). This does not mean that he recognizes a lawsuit in the sense of article 39 Code of Civil Procedure of the Russian Federation, since, as part of the same circumstances, the defendant can adhere to his own legal qualifications of facts and insist on the application of the law that the plaintiff refers, and the other. The continuation of a judicial dispute about the rights is quite possible in the absence of a dispute about the fact.

Is the opposite statement fairly? Does the recognition mean a claim in the sense of article 39 of the Code of Civil Procedure of the Russian Federation that the defendant also recognizes everything without exception the actual circumstances referred to the plaintiff? In accordance with the first motivation, which arises with such a question, I would like to answer that yes, if the defendant recognizes the claim, then he recognizes the entire actual side of the case under consideration by the court in which it sets out the plaintiff. For example, this opinion adhere to the authors of an interesting article "The limits of realizing the right to recognize the claim by the defendant" Stoyanov V. D. and Apailikov N. S.:

"Such a procedural action of the defendant as recognition of the claim is the recognition of its duty or responsibility, that is, the defendant's unconditional consent of the defendant with the material and legal requirements of the plaintiff (third party, declares independent requirements on the subject of the dispute), expressed in the established procedural law. Since the claim is to protect law or interest, i.e. The lawsuit relies on certain legal facts, which, as a general rule, should prove the plaintiff himself, the recognition of the defendant claim is nothing but the recognition of these very facts that the nasty side justifies their requirements. The administrative nature of the right to recognize the claim manifests itself in the absence of a doubt in a reliable and free willing of the defendant, the consideration of the case is completed by the issuance of a court decision without conducting a trial (part 3 of Article 68, para. 2 h. 4 . 198 Code of Civil Procedure of the Russian Federation) "(1).

"If the recognition of certain facts with the defendant does not recognize the claim as a whole, even if the defendant recognized all the facts except one. On the other hand, the recognition of the claim means consent and recognizing the defendant with absolutely all the facts that the plaintiff indicates "(2).

I emphasize that the presented work deserves attention, but I was not fully satisfied with the conclusions made in it. In particular, in my opinion, the authors of Stoyanov V. D. and Apailikov N. S. Excessively bring together these two types of recognition. I suppose it is obvious that the recognition of the claim in the sense of article 39 Code of Civil Procedure of the Russian Federation cannot be reduced to the simple recognition of the entire totality of the facts and circumstances of the case. I do this conclusion on the grounds that besides them (or besides them, it will be discussed further), which recognizes the case to the party agrees with legal qualifications and with the legal consequences of the claim, and this is more important than just the circumstances that have formed the basis spore.

Continuing reasoning, I would like to pay attention to some common features that are available from the recognition of the facts and recognizing 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 a claim by the defendant, if this contradicts the law or violates the rights and legitimate interests of others." In accordance with Part 3 of Article 68 of the Code of Civil Procedure of the Russian Federation "In case the court has reason to believe that recognition is committed in order to conceal the actual circumstances of the case or influenced by deception, violence, threatening, conscientious error, the court does not accept recognition about what the court is made Definition. In this case, these circumstances are subject to evidence on general reasons. "

It can be generalized that both rights have their limitations. At the same time, the right of the defendant to the recognition of the claim (in the sense of Art. 39 Code of Civil Procedure of the Russian Federation) is limited due to the rights and interests of other persons or the principle of legality (which in practice it is often an embodiment of public interest).

The right to recognize the facts is limited by considerations of the establishment of truth in the case (this indicates a reference to a possible "concealment of valid circumstances"), as well as the own interests of the person who agrees with the facts represented by the opposite side.

It turns out a rather surround design, from which it is difficult to make some unambiguous and solid conclusion about the ratio of these two species of "recognition". Let us dwell on the fact that the Side of the defendant is free to recognize both separate facts (objecting to their legal interpretation) and the claim in general. Both of these rights are limited by law, but the existing limitations are based on different, almost not correlated by each other.

The complexity and ambiguity of Part 3 of Article 68 of the Code of Civil Procedure of the Russian Federation is that in accordance with the principles of disposition and competition, as well as within a sense of article 56 of the Code of Civil Procedure of the Russian Federation, the obligation of proof lies on the parties. It is difficult to imagine how the trial may arise their own grounds to believe that the agreed actions of the parties are being taken to "conceal the actual circumstances of the case."

It should be done here a significant digression: the recognition by the defendant of the fact with the aim of "concealing actual circumstances" is possible only if the plaintiff pursues a similar purpose when approves the same fact for its part. After all, the initiative to discuss the fact proceeds in this case from the plaintiff. The Civil Procedure Code is quite unequivocally due to the situation when the parties are trying to establish certain circumstances and approve their legal decision. At the same time, the law perceives such actions as something that should be opposed to in every possible way, because, according to the law, the court in this case "does not accept recognition." He also "does not accept recognition" and in the case of "conscientious delusion (3) of the parties. 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" are not exhausted! Obviously the following: "Not acceptance of recognition" by the court does not mean that this fact is completely rejected. Moreover, it may later appear in the descriptive-motivative part of the solution, as proven. It is pretty clear that in a considerable degree of his legal fate depends on the degree of activity of the defendant to refute this fact. That is, Ignore the will of the sides does not work here, from which side it is neither.

In the meantime, Article 12 of the Civil Procedure Code claims that civil affairs justice is carried out on the basis of competition and equality of the parties. The role of the court is described in general terms. It is quite clear: it, "while maintaining independence, objectivity and impartiality, manages the process, explains to persons participating in the case, their rights and obligations, warns about the consequences of the commitment or imperfect of procedural actions, has persons participating in the case Assistance in the implementation of their rights creates conditions for a comprehensive and complete study of evidence, establishing actual circumstances and the proper application of legislation when considering and resolving civil cases (4). "

Comparing the above rules, we can unless to state that the legislator did not come to the final conclusion, whether the judge is obliged to be more actively in the field of establishing the circumstances of the case. The declaration process, in general, as "contene", the legislator "in the details" left the "active judge", that is, this that should know the best parties when one of them "is in good faith", and when there is a conspiracy in order to "conceal valid circumstances. " At the same time, the mechanism is formed in such a way that the judge will have to make a decision on this reason long before its removal in the accommodation room.

At the same time, Article 56 of the Code of Civil Procedure of the Russian Federation still places the obligation to proof on the parties. The reservation that the court "makes the circumstances of the discussion, even if the parties did not refer to any of them," is rather weak, because the court is not always aware of the availability of any new circumstances to be studied.

I will make a reservation that under the "collusion" of the parties in order to establish certain circumstances, I do not suggest to understand their literal, direct cooperation. It is much easier to imagine the situation at which both parties even in the conditions of the principal confrontation are unprofitable to disclose some facts. Or, on the contrary, both sides 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 "active judge", which would sometimes be truths sometimes even contrary to the agreed will of the parties.

I would like to make a reservation separately: in the sense of part 3 of article 68 of the Code of Civil Procedure of the Russian Federation, the court is obliged to confront any attempts to the parties agrees to hide some circumstances. This is true even for those cases when "hidden" or, on the contrary, the circumstances "formed" by the "parties are relating only to the interests of these parties themselves. The court does not accept the "unfair" recognition of facts even when such recognition does not affect the interests of unauthorized persons at all. Thus, the state monopoly on the truth is literally established. Formally speaking, the parties do not have the ability to negotiate and "rearly" to recognize a true any fact when it concerns only their own interests.

As follows from the previous paragraph, the facts in the civil process in some cases are established not only in the interests of the parties. From my point of view, it is very interesting - the establishment of the circumstances of the case according to the Russian Code of Civil Procedure, is made in the interests of the parties, in the interests of truth, which "belongs to the state", even when both parties do not need some facts to appear in the descriptive Motivoring part of the court decision. This configuration inevitably contributes, and will contribute to the Civil Procedure of Public-Legal, not private relations.

It is always fair to such a state of affairs - a separate question, and we will touch it later. The above does not exhaust the chosen theme! Now I propose to return to the recognition of the claim in the sense of article 39 Code of Civil Procedure of the Russian Federation. Compared to the recognition of the fact, the right to recognize the 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 addressed from the legality and on the rights and interests of others!

In general, reading this article of the law leaves the impression that the process of proof is not so firmly related to the resolution of those material and legal relations that make up the subject of a judicial dispute! Recognizing a lawsuit as a whole, the defendant "covers" the actual circumstances that the plaintiff initially laid the basics of his claims, that is, as if he moves them to the background. Here I would like to make a reservation - the defendant at the same time does not necessarily "recognize" all the circumstances referring to the plaintiff. Recognition of the claim in the sense of Art. 39 Code of Civil Procedure of the Russian Federation is primarily agreement on the onset of certain legal consequences in the material and legal sense (that is, on the merits of the dispute). "Recognize" if "all the circumstances" or not - we will talk about this below. Or maybe the recognition of the claim is in general the way to resolve the dispute outside of any connection with the circumstances of the case?

You can even "put a question with an edge": Can a claim recognize in the sense of article 39 Code of Civil Procedure of the Russian Federation to serve as a means of "concealing the actual circumstances of the case"?

Let's pay attention that the Code of Civil Procedure of the Russian Federation does not at all contain the prescriptions that he does not accept the recognition of the claim by the defendant based on the avoidance of "concealing the actual circumstances of the case." From this it follows the division of two different procedural situations: in one case (5), the judge who disassembles the civil case is forced to limit the side in recognizing the facts in order for the parties to coordinately hidden some circumstances. At the same time, solving the question, "hide" the parties circumstances or "do not hide", the judge is forced to partly in advance to predetermine the meaning of some evidence that inevitably.

In another case (6), when the defendant recognizes the lawsuit, in the sense of article 39 of the Code of Civil Procedure of the Russian Federation, the judge is not very connected with considerations about whether any circumstances are hidden or not hidden. Even more, part 2 of paragraph 4 of Article 198 of the Code of Civil Procedure of the Russian Federation directly indicates that "in case of recognition of the claim by the defendant in the motivation part of the decision of the court, it can only be indicated on the recognition of the claim and the adoption by its court."

On the one hand, it is explained. Civil proceedings are intended to resolve material and legal relations between citizens. For this reason, the procedural rights of citizens are, rather, "serving" in relation to the leading powers of citizens regarding their material rights.

In other words, if a citizen - the defendant decided to voluntarily dispose of the material right that the plaintiff challenges him, and to give him (the plaintiff) is the right, then such "as if a deal" recognizes admissible in accordance with Code of Civil Procedure of the Russian Federation. She is recognized as permissible even if the actual circumstances of the case if they were investigated, could indicate the need to take the opposite decision. The defendant ordered his material right regardless of real actual circumstances, and could simply transfer it to the plaintiff or to give. The world agreement almost any content does not need to substantiate its actual circumstances.

If the parties will attempt to achieve the same legal result through the agreed formation of a certain information picture in the court (that is, it will begin to synchronously recognize the circumstances that lead to the adoption of the decision planned by them), such actions may commend the counteraction of the court on the grounds that the parties are trying "Hide the actual circumstances of the case"! Obviously, the departing of facts in the case does not serve as parties in order to dispose of their material rights.

The facts are necessary for the court in case to dispose of the subject of the claim will have to be in an involuntary order, since the accuracy of the established circumstances is considered to be one of the criteria of the legality of the decision taken by the court. True, this "reliability of circumstances" itself also depends mainly from the activities of the parties, but we have already talked about this earlier (7), and I do not see the reasons to repeat here again.

But how to be if the situation is exactly the opposite way? How to be if the defendant is ready to take on material and legal obligations (or refrain from actions), as required by the plaintiff, but at the same time refers to other actual circumstances or do it 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 kind of material and legal authority (right). He is ready to take advantage of this purpose its procedural right to recognize the claim. After all, procedural rights are in the subordinate position in relation to the logistical law, right? In accordance with the principle of disposition, the respondent has the right to independently dispose of both its material and its procedural rights.

Of course, the plaintiff may insist on achieving not only the material and legal results, but also on the establishment of certain legal facts. However, in each specific case, the plaintiff is not guaranteed that he will find sufficient evidence in order for these facts to be established.

Let's return to this issue again: how to be if the defendant is ready to accept substantive obligations in accordance with the requirements of the plaintiff, but not ready to recognize reliable the circumstances that are at the heart of the claim? The most obvious answer would be to conclude a settlement agreement, but none of the parties cannot be obliged to sign this document. Each, including the plaintiff, can refuse the world, at least from stubbornness. In addition, the plaintiff may have the reporting ideas about the sufficiency of its evidence.

The defendant may have quite serious motives for such behavior (recognition of the claim) - since the desire to resolve the dispute, without sacrificing personal relations, 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 - 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 the court order to the legal force on the previously discussed case are required for the court. These circumstances are not proved again and are not subject to challenge when considering another case, in which the same persons participate. "

If we come to the recognition by the defendant's claim from that position that at the same time it recognizes and without exceptioning the circumstances of the case at the same time, then we will have to be consistent and consider this whole situation in terms of the applicability of this, unpleasant for the defendant, the norms of the Code of Civil Procedure of the Russian Federation. It turns out that purely procedural, formal feasibility in this case prevents the respondent in the free disposal by its financial law or responsibility that is the main subject of the dispute. He will be forced to dispose of them not voluntarily, and conforming to those facts and arguments that the plaintiff outlined. I think it makes no sense to make a separate reservation that the situation in the statement of the plaintiff is not always a sample of the purest truthfulness.

Suppose that the law will be more clearly spelled out that the defendant has the right to recognize the claim with the reservation that it does not recognize the actual circumstances on which it is based. In this case, I may argue that this infringe on the interests of the plaintiff in the event that he insists on the establishment of these circumstances. For example, the plaintiff may be in mind that the same circumstances he intends to use as established in subsequent proceedings in accordance with part 2 of Article 61 of the Code of Civil Procedure of the Russian Federation. However, at that time, when the defendant declares his agreement to fulfill the claimant's requirements in their material and legal part, the evidence available in the case will not necessarily be on the side of the plaintiff!

For the purposes of this article, you can imagine a hypothetical situation in which the court does not accept the recognition by the defendant's claim on the grounds that he objects against the circumstances set out by the plaintiff (although the defendant is also ready to fulfill the material and legal part of the claimant's claims in essence). In this case, in the course of further trial, the plaintiff may not be enough for evidence to substantiate its requirements. If the target of the "establishment of truth" prevails to resolve the relationship between citizens, a judge consistent in their actions may even be satisfied with the requirements against which the defendant has not previously objected (and objected only against the facts on which they are based).

If the recognition of the "logistical" side of the claim is excessively tied and recognizing his "actual side", then it will be possible to make even more amazing conclusions. For example, it is easy to see that when the judge accepts the defendant's declaration about the recognition of the claim, he does not prevent him that at the same time he recognizes some actual circumstances that the plaintiff can be used against it under the statement of subsequent lawsuits.

Does this mean that everything is the opposite, and that the defendant, recognizing the material and legal requirements of the plaintiff acceptable for himself, does not recognize the actual side of the claim at all? As we see, the opposite point of view is found in the literature (8), and the law does not contain a detailed response to this question. I tend to believe that, taking recognition of a claim with the defendant, the court could discuss the question of what exactly recognizes.

I will give a practical example:
Citizen N. Bala was dismissed from the enterprise "Zapad-Vostok" LLC for a walk. She appealed to the court with a claim for a former employer about changing the foundation of the dismissal and compensation for moral damage. The defendant, West-Vostok LLC (9), recognized the claim, referring to his willingness to voluntarily change the basis of dismissal, as well as to preserve good business relations with N. Respondent, recognizing the claim, did not claim that the absenteeism was not, And referred to only his goodwill. In addition, at the specified reasons, the defendant did not recognize the requirements for compensation for moral damage, believing that the claimant's moral harm was caused.

When satisfying the claim, the court proceeded from the recognition by the defendant's claim. At the same time, the court perceived the readiness of the former employer voluntarily to make the plaintiff's dismissal at his own request as recognition by the enterprise that were set out in the claim (that is, as a recognition of the absence of absenteeism). Since the compensation of moral damage flowed out of the violation of the employment rights of the employee (and the court perceived the position of the defendant precisely as the actual recognition of such a violation), then the requirements for compensation for moral damage, albeit in a smaller size than the claimant required. The decision by the defendant, unfortunately, was not appealed.

I brought this example here only in order to show that the court in practice does not distinguish the "shades" of recognition by the defendant's claim, and in vain. After all, the West-East LLC is a private enterprise and the dismissal of the employee on or another refers to the competence of its leadership: the law does not prohibit the employer in voluntarily improve the conditions for the dismissal of the employee compared to the original.

Moreover, the law does not oblige the employer in obligatory procedure to paranoidly pursue him for the allowed walk (which did not do the employer in the considered case). The whole situation is the relationship of two individuals (although one of them has the status of a legal entity). For this reason, the circumstance is becoming essential that one of them is entitled to fulfill the requirement of another, "closing the eyes" to the occurred place. At the same time, the side of the defendant had all the grounds to disagree with the requirement of compensation for moral damage, because all the piquancy of the situation was that, from the point of view of the enterprise, there was a place to be.

However, the court does not distinguish such shades, perceives the desire of a former employer to improve the position of the former employee as recognition of his (employer) "guilt" and, not doubting anything, adds the defendant "Needs" in the form of meeting the requirements for compensation for "moral damage". There are obvious and very unpleasant traces of "criminal procedural consciousness" in the civil procedure. It turns out that the recognition of the claim is hardly equal to the "recognition of guilt", which, as is known, "Queen of Proof". Separately, I would like to emphasize that the conclusion of the settlement agreement in this situation was unlikely to be possible for many reasons, including a considerable share of simple stubbornness. I would not have taken to predict the outcome of the case if the defendant "went to the last" in the sense of the not recognized claim. I admit that the case could be solved in favor of the defendant.

We emphasize: the key in this situation is the fact that the former employer had the right (and not a duty) to attract an employee to disciplinary responsibility in the form of dismissal for the program. Article 192 of the Labor Code of the Russian Federation contains precisely such wording: "The employer has the right to apply disciplinary recovery." In this situation, voluntary cancellation by the employer superimposed the disciplinary recovery is not a violation of the law, even if the misdemeanor took place. And even more strangely to associate such actions of the employer with the recognition of them with their "guilt" or the illegal imposition, because it is within its authority, and at the same time improves, and does not worsen the position of the employee. The restriction of the employer in such actions would be excessive public interference in private relations.

Returning to the above example, we see that by virtue of their procedural "softness" the defendant received the "imaginary" in the form of expenses for compensation for moral damage, although, showing a counter "stubbornness", the legality of the imposition of recovery would be proven! The court perceived his position as "confession of guilt."
Nevertheless, judicial practice in this matter, as we see, firm towards the defendant: or you recognize the claim (with all the factual circumstances, as it were, the plaintiff with them or completely object to them (and deprive himself and, perhaps, The plaintiff, the ability to settle the material and legal part of the dispute, because the plaintiff may not be enough evidence).

I think it is necessary to conclude that the recognition of the claim in the sense of article 39 of the Code of Civil Procedure of the Russian Federation and the recognition of the circumstances in the sense of article 68 of the Code of Civil Procedure of the Russian Federation are burdened with its excessive attachment to the concept of "objective truth". Thus, the legislator establishes that "the recognition of the circumstances in which the other Party establishes its requirements or objections, frees the latter on the need to further proof these circumstances." But here, as if frightened, makes a reservation against "concealing the actual circumstances of the case or in good faith", as if the court in the forces on his own initiative exceed the parties to collect evidence.

The law leaves for the defendant the right to freely recognize the claim. But does not clearly distinguish between those situations when material and legal requirements are recognized simultaneously with the recognition of actual circumstances and those when the defendant is ready to give the claimant's claims, but does not recognize the actual side of the case.

Of course, in accordance with Article 198 of the Code of Civil Procedure of the Russian Federation, "in case of recognition of the claim by the defendant in the motivation part of the court decision, it can only be indicated on the recognition of the claim and the adoption by its court." This somewhat mitigates the situation of the defendant's claim and "shades" the question of recognition of actual circumstances. I believe that in this case it would be a very correct decision.

Nevertheless, in that, and in another case, the "bias" of civil procedural legislation is visible in the direction of publicity, which may in some cases be combined with the NEMP, the principle of dispositionability declared Code of Civil Procedure. In the field of establishment of the facts, the cautious position of the legislator can partly understand, because the circumstances established by the first instance (including those established through the consent of the parties), not only may result in the consequences in accordance with Parts 2 of Article 61 of the Code of Civil Procedure of the Russian Federation, but also to affect the decisions of subsequent instances on The same case. However, it is hardly possible to consider the justified position, although careful, but contradictory and inconsistent.

Tangible public trends in our civil procedural legislation are quite explained from a historical point of view. Do not forget that our judicial procedure in many ways inherits Soviet. 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 farming is public-legal, and not private. We admit capitalism only the state, and the state, this is, as mentioned above. From here - to expand the use of state intervention in the "private-planning" relationship; expand the law of the state to cancel "private" contracts; Apply not Corpus Juris Romani to "civil relationships", and our revolutionary legal consciousness ... "(10).

It would be strange if ICP, so not far from Soviet, easily allowed the parties to "thrust" with their relationship, covering some circumstances from the court. After all, thereby the parties would deprive the court to apply the principle of legality in his literal public-legal and legal entity to their relationship. However, the full and final embodiment of the principle of publicity is clearly hampered by the right of the defendant with a promptly and unmotivable to recognize the claim, thereby depriving the authorities of state coercion to resolve the dispute in accordance only with the legality and revolutionary legal consciousness.

That is what I am inclined to explain what issues related to the procedure for recognizing the claim are reflected in the law very dotted: the legislator does not consider it necessary to make this part of the process of detailed, transparent and by virtue of this more attractive for the parties. Increasing the attractiveness of the various kinds of "confessions", full or partial, would contradict the general idea of \u200b\u200bpublic intervention in the relations of individuals.

"Lutching to the last breath" in court is just an ideology of government conflicts based on alone principle of legality. After all, whatever the parties do in this case, the judge will decide in accordance with the prescriptions of the law, based on the inner conviction. She (this ideology) opposes any attempts to resolve the dispute, taking into account the will of the parties. And the recognition of the claim looks like we have some strange remnant that there is no need to prescribe in detail in the law.

Now that we have established that the fact is "state property", and disassembled some consequences of this conclusion, I would like to make another turn in our reasoning. I propose to concentrate on the fact that civil-related dispute does not always represent the opposition of two private interests. Often, private interest in court opposes public interest, which finds his representative office in the person of various state bodies. Of particular interest to our work are such things, where the establishment of a fact is the main or the only question of the trial.

Example number 2:
Citizen N. appealed to the court in the order of special production. She asked to establish the fact of its permanent residence on the territory of the Russian Federation on the day of entry into force of Law No. 1948-1 of November 28, 1991 "On Citizenship of the RSFSR", namely on February 6, 1992. In a statement, she indicated that the recognition of this circumstance was required to confirm the citizenship of the Russian Federation and the subsequent appeal to the FMS in order to obtain a passport.
The court on his own initiative is attracted as a "other stakeholder" of the FMS authorities. In the statement N. they, of course, did not appear. Thus, the Court stated that the state body has an interest in this fact. I especially emphasize - it is in fact as such, taken separately from legal relations, because, although the applicant did not hide what he (fact) is required, but the question of issuing a passport at the time of the trial has not yet been raised.

The representative of the FMS aggressively objected to the arguments of N., despite the presence of convincing evidence from the applicant and the absence of any materials in the FMS. After satisfying the requirements of N, this judicial act was appealed to the FMS authorities in the superior instance. From curiosity, I asked what exactly was caused by such active opposition, because public interest is not at all that the citizen certainly refused. In some cases, public interests do not at all require the state to oppose citizens in achieving those of their personal goals. I was answered that such a position of the "higher authorities". The position is to object in court against any requirements of citizens.

As we see, in the second case, the "right state ownership of the fact" receives another expression than in the first. In the second case, it manifests itself in the fact that the court attracts state bodies as a "stakeholder" in some cases of special production. At first glance, judicial practice in this way states that public interest is present directly in the field of establishment of facts, that is, even when a citizen has not yet managed to physically contact the corresponding state body (in this case it is an FMS) and did not receive any satisfaction with its requirements No refusal to satisfy. However, individual details indicate a friend: it turns out that it is not about public interests, but only about bureaucratic (departmental) interest of one or another body.

In the domestic legal culture, the point of view is not rooted that government agencies are professional expressions of public interests. In this regard, it is necessary to have so often hear references to the "bosses of knowing", on the misty "state interests" and "just in case." At the same time, it is clearly clearly seen from the second example that civil servants appeal to the facts no more responsibly than it would make any individual. Only the vector of the application effort varies, but not the degree of adherence to scientifically-reasonable methods of knowledge of reality. The decision in favor of N., as far as I managed to understand this for myself, it would be appealed in any case, which mighty the arguments would be in favor of his legality and validity.

Exactly the same impression leaves most of the civil processes in which the state body acts as a defendant. Recognition of the claim from the state in most cases seems to be something exceptional. Representatives of the state prefer to "stand until the latter" and object to the claim even when the arguments of the plaintiff 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 the claim from the executive body as it were, as it were, "takes out" a judicial function beyond the court's actual.

The recognition of the claim according to the Civil Procedure Code of the Russian Federation cannot be somehow stipulated and motivated. It should be borne in mind that the government - the defendant is obliged to make a decision not in personal, but in public interests, please forgive me an invalid pun. At the same time, the decision-making of the state body or body of local self-government on recognizing the claim without any motivation (I emphasize once again - this motivation is simply not provided for by law) as if "transmits" the final decision on a civil case at the discretion of the official who is authorized to recognize the claim on behalf of states. Indeed, in this case, the court almost does not remain the arguments in order not to satisfy the lawsuit against the state recognizing His state (and in fact acting on behalf of the state authorized body or face). Recognition of the claim theoretically almost always entails his satisfaction (and practically - always).

From my point of view, such a "mechanic" makes it difficult to recognize claims with state bodies. If such a procedural action would be carried out "in the open", that is, with a "transparent", transparent motivation, then, on the one hand, the court could give an assessment, how convincing state representatives are on guard of public interests. On the other hand, I believe that it would reduce the official fear in the style of "how would not happen." Open, and not a backstage discussion of the conditions for recognizing the claim in this case would be well opposed to the discharge of extra and unnecessary passions and suspicion. I emphasize, in this case it comes only about state bodies acting as defendants and set about the recognition of the claim. Their difference is that they are designed to defend public interest, and because of this, their actions should be most clearly understood and "transparent". The same persons who act in the court on their own, 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, for example, to make any reservations).

It can be assumed that the big predictability of judicial practice could increase the popularity of the procedural procedural action (recognition of the claim). However, the usual defendant most often perceives judicial practice indirectly, through lawyers. The predictability of judicial practice can increase only in the eyes of our professional corporation, since we are to some extent and participate in its formation. It would be naive to assume that someday there are thousands of trucks, all the subtleties of the judicial system will be able to estimate everything. This means the need for some revision of the meaning and methodology of the lawyer profession. Obviously, "cutting to the last breath" is often not the best way to resolve social conflict.

At the end of your work, I would like to stay in detail on my own position on the topic of the article. It seems to me that the legislator believes in vainly that the triad "Refusal of the claim - recognition of the claim - the settlement agreement" in itself sufficiently covers all the nuances of voluntary resolution by the parties to their disputes. In particular, the recognition of the claim by the defendant is an independent and very valuable right, the use of which could allow to make well-fair decisions, and it is great to reduce the time consideration of many cases.

In order to increase the popularity of this procedural right among citizens and specialists, I suppose it would be advisable to register in more detail in the law the procedure during which the defendant can recognize the claim. The capitulation most often has its own conditions, isn't it? An alternative to surrender is the war, long and bloody (although in our case only expensive and take part of all involved persons of precious time).

In particular, it would be suggested to supplement Part 4 of Article 198 of the Code of Civil Procedure of the Russian Federation the Regulations that if the claim was recognized and adopted by his court, in the descriptive-motivative part of the decision, no circumstances that were not recognized as the defendant were not recognized. From my point of view, it would not disturb the interests of the plaintiff. In the event that the plaintiff is interested in establishing circumstances, for example, to use them in another legal proceedings in accordance with C.2 Article 61 of the Code of Civil Procedure of the Russian Federation, and it has sufficient evidence for this, it can establish them in subsequent proceedings.

Of course, when working on the conditions on which the claim is possible, the reasonable balance of the interests of the plaintiff and the defendant should be taken into account. But literally equating the recognition of claims for the recognition of all the actual circumstances set out by the plaintiff in his statement, I consider it absolutely inexpedient.

01/27/2015
Lawyer of the non-profit organization of the Board of Lawyers of the Khabarovsk Territory "Forum",
Khabarovsk

Konstantin Vladimirovich Bubon

[Email Protected]

1 - Stoyanov V. D., Apailikov N. S. "The limits of the realization of the right to recognize the claim by the defendant" \\\\ judicial reform and the problems of the development of civil and arbitration procedural legislation: materials of the International Scientific and Practical Conference. - Moscow: Ram. 2012
2 - there.
3 - Part 3 of Article 68 Code of Civil Procedure of the Russian Federation.
4 - Part 2 of Article 12 Code of Civil Procedure of the Russian Federation
5 - part 3 Art. 68 Code of Civil Procedure of the Russian Federation
6 - art. 39 Code of Civil Procedure of the Russian Federation
7 - K.V. Bubon, to the question of the legal category "Truth" in civil and criminal proceedings and its place in a number of legal values \u200b\u200b// "Lawyer", No. 5, May 2012
8 - Stoyanov V. D., Apailikov N. S. "The limits of realization of the right to recognize the claim by the defendant" \\\\ judicial reform and the problems of the development of civil and arbitration procedural legislation: materials of the International Scientific and Practical Conference. - Moscow: Ram. 2012
9 - all the names in this article are changed by the author, the possible coincidences are random.
10 - Lenin V.I. On the tasks of a drug leisure in the context of a new economic policy: Letter D. I. Kurki // Full Collected Works. Ed. 5th. T. 44. M., 1964. P. 398

Bibliography:

1. Constitution of the Russian Federation
2. Civil Procedure Code of the Russian Federation.
3. Stoyanov V. D., Apalikov N. S. "The limits of the realization of the right to recognize the claim by the defendant" \\\\ judicial reform and the problems of the development of civil and arbitration procedural legislation: materials of the International Scientific and Practical Conference. - Moscow: Ram. 2012
4. Osokina G.L. Civil process. A common part. 2nd ed. Norm 2010.
5. Comment to Code of Civil Procedure of the Russian Federation. 3rd ed. Ed. Deputy. Armed Forces of Russia Nechaeva V.I.

Participants in the civil dispute are entitled to decide on the recognition of the claim by the defendant. After the second side expresses its consent with the requirements, the judge makes a positive decision that satisfies the plaintiff. If the defendant agreed with the statement of claim, this does not mean that it is fully ready to satisfy all the requirements of the opposite side.

General provisions

Consent with the claim may not only be complete, but also partial. After one side agrees with the requirements of the second, the judicial body fully or partially satisfies the statement of claim. Then one or more requirements are considered entirely or partially established, which speeds up the trial or makes it completely unnecessary.

At what stage the requirements may be recognized

Partially the requirements of one of the parties can be recognized before the moment the judge did not go to the advisory room to endure the final verdict. After the decision was announced, the recognition of the claim by the defendant in the civil procedure is meaningless, since the requirements or are 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 requirements of the second party, the court may refuse him if:

• these actions violates the legislation and the rights of other citizens or organizations are infringe upon;
• such actions were a consequence of the introduction of the defendant to delusion;
• one of the parties deliberately deceived the second or forced to make such a decision under the threat of violence;
• the circumstances that are related to the case under consideration were specifically hidden.

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

All the requirements with which the second party agree must be specifically listed and reflected in the judicial protocol.

Recognition decoration

Procedure for registration

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

Registration of partial recognition

Partial refusal is issued in two ways:

• What the defendant agrees with, he says orally. This is entered into the judicial protocol, which is conducting the secretary of the meeting. After that, the person recognizing the requirements, puts its signature and indicates the date.
• The defendant prepares a written statement in advance. It is attached to the case file. The statement must be detailed and clearly described all the requirements with which the defendant agrees, as well as those that the judge will continue to be considered. If a material claim is presented, the respondent must be specified, with what amount he agrees, and what refuses to pay.

Important!If the interests of the second party represent a lawyer or a lawyer, then he can also carry out the procedure, but for this he must have a proceeding attack for such actions.

The procedure for compiling a claim for recognizing the claim

The form of such a statement can be found on the Internet, ascertaining in the judicial office or take a lawyer in civil matters from a practitioner.

The statement indicates:

• address and F. I. O. Parties;
• the name of the document (centered);
• information concerning a particular case and the reasons that have formed the basis of the consent;
• specific requirements that were recognized and their volume;
• court notice on the consequences of actions related to consent;
• the date of the application and the applicant's signature.

An example of a statement

Consequences for the defendant

The person who expressed his consent orally or in writing is obliged to:

• voluntarily fulfill all the requirements claimed in the claim;
• unconditionally carry out the decision of the judicial authority;
• refuse to challenge the court decision in the future.

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

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

• soften the verdict of the Court;
• get a real deferment in the execution of the decision if it is material in nature;
• suspend or completely discontinue proceedings and conclude parties a settlement agreement.

If, for example, a claim is considered in relation to the PI or is associated with the issues of violation of tax legislation, then consent to the requirements may entail not only administrative, but also criminal liability. In this situation, the defendant needs to weigh all the arguments of the plaintiff. If they are justified and be subject to satisfaction with the court, then more serious sanctions may follow in disagreement with the statement.

On a note!The disadvantages of such a step after the parties expressed consent to the conclusion of the settlement agreement, refers to the defendant from fulfilling its obligations. In this case, a decision is made on the basis of Article 194 of the Procedure Code, but the definition of which is more difficult to force to execute.

Duties of the judicial authority

The minutes of the court session are closed:

• statement of the claimant on refusal of the claims;
• recognition of requirements by the second party or its representative;
• terms of imprisonment of the settlement agreement, which should sign both parties.

When submitting written requests for the recognition of the claim or conclusion of the settlement agreement in the minutes of the court meeting, it is indicated for the introduction of these documents to the case file.

If one side recognizes the requirements of the second, the judge is obliged to clarify the possible consequences of the actions taken. If the consequences are understandable to the respondent, it is fixed in his written statement or is reflected directly in the minutes of the meeting.

If in a written statement there are no consequences of the actions performed provided for by law, they must necessarily clarify the judge when considering the case. The failure to fulfill these duties by the court is considered a significant violation of the procedural norms, which can be the basis for the abolition of the judicial verdict by a higher authority.

Protocol

Is it possible to challenge agreement with the claim

If the defendant admitted a lawsuit, then subsequently challenge these actions will be only possible by filing an appeal. The main argument in this case may be the incompleteness of the actions performed.

The court of superior instance in this case checks:

• there were or there were no conditions for consent with the statement of claim;
• there were or lacking circumstances forcing the face to consent;
• whether the respondent had a disease that prevented an understanding of the importance of the Action committed by him;
• warned the court about the consequences of such actions.

Thus, recognize the claim in the course of consideration of the requirements. For this, there is provided for the Code of Civil Procedure of the Russian Federation. A sample application for recognition of claims can be asked directly in the judicial authority. Cancel recognition can be possible only in exceptional cases that 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 parties, they are considered the main defendants and, naturally, that the law gives them any eligibility. In particular, the parties have the right to commit different administrative actions, one of which is a petition for recognizing the claim.

Recognition of the claim as a legally significant event regulates Art. 39 Code of Civil Procedure of the Russian Federation. It should be understood that this is a defendant's absolute consent 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

The claim for recognition of the claim may be oral or written. In the first case, the voiced requirements are subject to a guide in the minutes of the court session, in the second - they are involved in the case file and this event is also fixed in the protocol.

The claimed written recognition of the claim is issued similarly to the usual claims. A standard sample claim for recognition of the claim must contain, in addition to compulsory information, information on why the defendant considers the requirements to be legitimate and wishes their satisfaction.

Separate nuances of legal proceedings

1. The court clarifies the parties to the legal consequences of the recognition of the claim and does not accept it if this contradicts the law or the interests of others infringe on. In this case, the appropriate definition is made, and the case is further considered essentially.
2. The court, relying on the instructions of Part 4 of Art. 198 GPC in the motivation part of the decision, fixes this circumstance and satisfies the claimant's requirements without analyzing the evidence basis and the explanations submitted.

Depending on the nature of the legal relationship, the administrative action under consideration is used in court proceedings to quickly resolve disputes between the subjects and is aimed solely on the implementation of the legitimate interests of the participants in the process by one of the legal methods.

Each of the participants in the court proceedings has certain rights and obligations. One of the rights of the defendant is the right to recognize the claim. When the claim, considered in court, is fully recognized by the defendant, the court does not need to consider the circumstances of the case, it can make a positive decision only by the descriptant respondent's testimony. In civil cases, such indications are called the recognition of the claim, and if the defendant recognizes its guilt in the criminal process, it is called the consideration of the case in a special order, it is given these cases to provide a positive decision in favor of the plaintiff.

More about how the recognition of the claim is what it is, and what are the consequences of these actions, you will learn a published article.

What it is?

Recognition of the claim is the consent of the defendant with the requirements that the plaintiff declared in a lawsuit. At the same time, the recognition of the claim is two types:

• Full;
• Partial.

But, in any case, if a person recognizes a claim, the court will satisfy him, and whether it depends on what he recognized the defendant, and that was established during the judicial review. Since the defendant can give his consent at any stage of the consideration of the case, it partially can already be considered by the court, and something can be established during the trial. Further establishment of circumstances loses its meaning, after the consent of the respondent with the requirements, thereby speeding up the trial and simplifying the work of judges.

Info

Recognition by the defendant claim may not be accepted by the court if it will violate the law. Recognition must be given voluntarily, the defendant must be warned about the consequences of consent with the requirements of the claim, and the defendant must necessarily transfer all the requirements of the claim with which he agrees. The defendant must list: whether he agrees with the circumstances submitted by the plaintiff in the lawsuit, and also argue if I do not agree with the part of them.

Procedure of action

In order to bring a positive decision in favor of the plaintiff, when the defendant agrees with the requirements, the defendant must make an application to the court on recognizing the claim. When it is submitted to the court, it is believed that the respondent's claim has happened. Of course, in order for the defendant's statement to adopt, it is necessary that the court consider that it does not contradict the law, does not violate any rights and written the defendant voluntarily.

After the court adopted the defendant's statement. It ceases to trial and proceeds to the decision on the claim in favor of the plaintiff. After a statement is made to recognize the claim, the court ceases to consider evidence in the case. Recognition The defendant can give at any time during the consideration of the claim by the court.

Info

The fact that consent is received with the claims from the defendant is fixed in the judicial protocol, and the application is attached to the materials in the case.

In order for the court to understand voluntarily, a statement was drawn up to recognize the requirements, the judge polls the defendant. In the survey, the judge must figure out and check the following factors:

• The reasons for which the defendant recognized the lawsuit;
• Are there any conditions for recognizing the claim;
• Are there any circumstances that forced it to do the defendant;
• Does he have diseases because of which he does not understand the meaning of these actions;
• Does the respondent understand the contents of the claims and the consequences of recognition.

If it is revealed that the defendant is forced to recognize the claim, then such recognition will not be accepted, and the case will be considered in the usual manner. The protocol should be marked by all questions and answers asked by the judge respondent and received from it.

Attention

A global agreement can be concluded between the parties if the claimant agrees with the recognition of the defendant as a claimant, but in the event of a voluntary execution of requirements under these conditions. If the defendants in the case several consent with one of them violates the rights of others, so the case will be considered in the usual basis.

Sample

You can download a sample application to the court to recognize the defendant in a civil case in the Internet or to take in the office of the Court. And on our website below you can find a statement made up by lawyers, taking into account the latest changes in the current legislation. The concrete sample of the statement by law is not established, so you can use this form.

In the header of the application, it is indicated: where and from whom it is directed. In the center of the document, its name is indicated: "An application for recognizing the claim by the defendant", and then indicates information about the case and sides of the claim that participate in the proceedings, the reasons for the recognition of the claims and the indication of specific requirements and their volume with which the defendant agrees.

Then the legal grounds refer to which the defendant refers, recognizing the claim, and agrees that he is known to be the consequences of action to make a claim, and he is ready to accept them. At the end of the application, the date of drawing up and signature of the respondent is set.

Sample

IN _________________________
(Court name)
Respondent: ___________________
(FULL NAME, address)

Application for recognizing claim by the defendant

In the work of the court, the case is on the claim _________ (FIO of the Plaintiff) to _________ (FULL NAME) O _________ (indicate what claimed requires).

Due to the fact that the claimant's claims are substantiated, 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 a claim when this recognition does not contradict the law does not violate the rights and legitimate interests of other persons, that when adopting a claim, the court decides on satisfaction claims, I know.

Submission date: "___" _________ ____ Signature _______

Effects

At the end of the respondent's survey in court after submitting an application for recognizing the claim, the judge necessarily clarifies it the consequences of the actions performed. Then the understanding of the consequences by the defendant is recorded in the Protocol of the Court. The judge informs the respondent about the following consequences of consent with a claim:

• Satisfaction of the claims with which the defendant agrees;
• Lack of opportunity to apply for the appeal of the decision;
• The court decision will be recorded that a citizen recognized the claim.

At the same time, if a citizen agrees only with part of the circumstances and the claims of the plaintiff specified in the claim, he must convey this idea to the court. After all, the defendant can adhere to its legal qualifications of facts and insist on the application of another law, and the wrong claimant. If the defendant recognizes the claim completely, he will no longer be able to require the claims to be changed, so it should be thought about in advance.