Statement of claim concept types content. Court ruling. The concept of a claim in the arbitration process, its elements and types
Statement of claim- a procedural document with the help of which the right to appeal to the economic court is exercised.
Performance statement of claim is a form of exercise of the right to claim. To file a claim means to apply to the economic court with an application, which should contain a request addressed to the court to consider a dispute about the right that has arisen.
A claim is defined in the legal literature as a requirement of a person to protect his or someone else's right or legally protected interest.
An appeal to the economic court is carried out in the form of a statement of claim in disputes that arise from economic legal relations.
Economic procedural law distinguishes the concept of "claim" in the procedural and material sense. A lawsuit in the procedural sense is a demand addressed to the court of first instance to protect one's rights and interests. In this aspect, the claim is a means of establishing an economic process. Claim in the material sense - the right to satisfaction of their claims.
Elements of a claim- its structural components, which collectively determine its content. There are two elements to the claim:
- a) the subject matter of the claim;
- b) the grounds for the claim.
Highlighting the elements of the claim is important in the issue of preventing the presentation of identical claims - between the same parties on the same subject and on the same grounds. Submission of a claim identical with that already considered by the court is not allowed. If such a claim is filed with the court, then in accordance with Art. 62 of the Code of Civil Procedure, the economic court refuses to accept a statement of claim if the economic court or other body that, within its competence, resolves an economic dispute, is right from a dispute between the same parties, on the same subject on the same grounds, or there is a decision of these bodies from such a dispute.
The subject of the claim as a requirement to protect a violated or disputed right or legally protected interest is a way to protect this right or interest. The grounds for the claim are the facts that substantiate the claim for the protection of a right or legitimate interest. The grounds for the claim include only legal facts, that is, those with which the norms of substantive law associate the emergence, change or termination of the rights and obligations of the subjects of the disputed material legal relationship. There are factual and legal (legal) grounds for a claim.
Defining the subject of the claim as a way to protect a right or interest, one should pay attention to the list of ways to protect civil rights and interests, set out in Art. 16 CC. Ways to protect civil rights and interests can be:
- 1) recognition of the right;
- 2) recognition of a legal transaction as invalid;
- 3) termination of the action that violates the right;
- 4) restoration of the situation that existed before the violation;
- 5) compulsory performance of duties in kind;
- 6) change of legal relationship;
- 7) termination of the legal relationship;
- 8) compensation for losses and other methods of compensation for property damage;
- 9) compensation for moral (non-property) damage;
- 10) recognition of illegal decisions, actions or omissions of a public authority, authority of the Autonomous Republic of Crimea or local self-government, their officials and employees.
The court may protect a civil right or interest in another way, which is established by an agreement or law.
Article 20 of the Civil Code establishes that each business entity and consumer has the right to protect their rights and legitimate interests. The rights and legitimate interests of the noted subjects 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 entities that contradict the law, infringe on the rights and legitimate interests of a business entity or consumers; recognition of economic agreements as invalid on the grounds provided for by law;
resumption of the situation that existed before the violation of the rights and legitimate interests of business entities;
termination of actions that violate the right or threaten to violate it;
award to performance of duties in kind;
indemnification;
application of penalties;
application of operational and economic sanctions;
application of administrative and economic sanctions;
establishment, change and termination of economic legal relations;
in other ways prescribed by law.
It is necessary to distinguish between the concept lawsuit" And " statement of claim"Yes, the statement of claim may contain several claims. The claim may change during the hearing of the case (change in the subject matter, grounds for the claim), while the statement of claim as a written form of the claim remains unchanged.
Statement of claim is a document of the written form and content established by the procedural law, in which the plaintiff sets out the substantive legal requirements for the defendant.
The form of the statement of 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 must contain information: on the name of the court to which the application is submitted; the name of the plaintiff and the defendant, their place of residence, if the organization acts as the plaintiff or defendant, then its location; the name of the representative and his address, if the application is submitted by a representative; the facts on which the plaintiff bases his claim, and the evidence supporting them; facts indicating a violation or a threat of violation of the rights, freedoms and legitimate interests of the plaintiff; the price of the claim, if it is subject to assessment, as well as the calculation of the sums of money collected or disputed; observance of the pre-trial procedure for addressing the defendant, if it is provided.
In addition, the statement of claim lists telephone numbers, fax numbers, addresses Email the plaintiff, his representative, the defendant, as well as any other information that is important for the proper consideration and resolution of the dispute.
Some features are characteristic of the statement of claim presented by the prosecutor in defense of the interests of Russian Federation, its subjects, municipalities or in defense of the rights and freedoms of an indefinite circle of persons. The prosecutor is obliged in his own written request to emphasize what exactly the violation or contestation of rights and interests consists of and what law provides for them. If the prosecutor turned to protect the rights of a citizen, then it is necessary to justify why the personally subjectively interested person cannot apply to the court on his own, or indicate the citizen’s appeal to the prosecutor (part 3 of article 131 of the Code of Civil Procedure).
Attached to the statement of claim: its copies in accordance with the number of defendants and third parties; a document confirming the payment of the state fee; a power of attorney or other document certifying the authority of the plaintiff's representative; documents confirming the circumstances on which the plaintiff bases his claims, as well as copies of these documents for the defendant and third parties; the text of the published normative legal act in the event of a dispute; evidence indicating the observance of the mandatory pre-trial procedure for the settlement of the dispute; calculation of the exacted amount of money with copies for the defendant and third parties.
The statement of claim is signed by the plaintiff or his representative, but only if he has the authority to do so.
The presence in the written petition of any flaws in terms of form and content makes it legally void, in connection with which the court must make a ruling on leaving the statement of claim without movement.
The current Code of Civil Procedure allows a person to apply to the court with a statement of claim or by sending it by mail, in contrast to the APC, which allows the plaintiff to file Required documents in electronic form by filling out the forms posted on the official website of the arbitration court in the Internet information and telecommunications network. For this purpose, persons are registered in the "Electronic Guard" system, and a person registered when submitting documents through the creation of his account, forming " Personal Area", is a user of the document filing system. In order to optimize the electronic application to arbitration courts, Order No. 1 of the Supreme Arbitration Court of the Russian Federation dated January 12, 2011 approved the Temporary Procedure for Submitting Documents to Arbitration Courts of the Russian Federation in Electronic Form.
- The Constitutional Court of the Russian Federation by Decision No. 474-0 of December 18, 2003 "On the refusal to accept for consideration the complaint of citizen Chumakov Alexander Vladimirovich about the violation of his constitutional rights by Article 132 of the Civil Procedure Code of the Russian Federation" confirmed the constitutionality of Art. 132 of the Code of Civil Procedure, requiring documents to be attached to the statement of claim confirming the circumstances on which the plaintiff bases his own legal claims.
The study of the concept of a statement of claim should begin with an analysis of the essence of the claim form of protection.
Controversial claims to be considered within the framework of the procedural form are called claims. The claim form of defense is the most suitable for the proper consideration and resolution of disputes with a decision. The main features of the claim form of protection of rights are studied in sufficient detail in the procedural science of Chernykh I.I. Commentary on the Civil Procedure Code of the Russian Federation / S.A. Alekhina, A.T. Boyner, V.V. Blazheev and others; Rep. ed. M.S. Shakarian. M., 2007. S. 299. and are as follows: the procedure for considering and resolving civil cases is consistently determined by the norms of the civil procedural law; the persons participating in the case have the right, personally or through their representatives, to participate in the consideration of the case at the court session; persons participating in the case, the law provides sufficient legal guarantees that enable them to influence the course of the process and seek a legal decision; proceedings are adversarial.
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 interested persons to judicial protection, their rights and legitimate interests is the basis for the cancellation of the court decision. The choice of the way to protect civil rights belongs directly to citizens and legal entities.
The claim form of protection of rights exists not only in civil proceedings, its main features are also inherent in the arbitration process. We can also talk about the claim form of protection of the right in relation to arbitration proceedings. Consideration and resolution of the dispute in the arbitration court takes place with the necessary legal guarantees of compliance with the law, and the parties have equal procedural rights the federal law dated July 24, 2002 "On Arbitration Courts in the Russian Federation" (subsequent edition) // ATP "Consultant Plus" comp. on 20 Aug. 2012. In the Law of the Russian Federation of July 7, 1993 "On International Commercial Arbitration" (subsequently red.) ATP "Consultant Plus" comp. on 20 Aug. 2012 refers to the filing of a claim, statement of claim, claims, objections of the defendant in the claim, equal treatment of the parties (Articles 8, 23, 18) Despite the increase in the number of types of legal proceedings, the existence of three types of legal proceedings remains the main and undeniable: action, proceedings in cases arising from public law relations, and special proceedings // Degtyarev S.L. Types of production in the modern civil and arbitration process // Arbitration and civil process. 2007. No. 8. P. 34..
A controversial substantive claim of one person to another, subject to consideration in a certain procedural order, is called a claim. A claim is a procedural means of protecting a violated or disputed right, inherent in the claim form of legal proceedings. The lawsuit is a universal means of protecting the right. In its essence, it is a complex phenomenon in which two sides should be distinguished: substantive law - the plaintiff's claim to the defendant and procedural law - this is the plaintiff's claim to the court to ensure the protection of the violated or contested right. At the same time, the claim to the court cannot but be accompanied by a claim to the defendant.
It is about the substantive claim of one person to another, about claims that are repeatedly indicated in the law and judicial practice Rakitina L.N. Reducing the amount of claims at the initiative of the court: issues of reimbursement of expenses for the payment of the state fee // Arbitration and civil process. 2008. No. 10. P. 34 .. Thus, the statement of claim must indicate the claim of the plaintiff to the defendant (part 4 of article 131 of the Code of Civil Procedure of the Russian Federation), the defendant has the right to file a counterclaim against the plaintiff (Article 137 of the Code of Civil Procedure of the Russian Federation) A counterclaim is a substantive claim the defendant to the plaintiff, declared for joint consideration with the original claim. A counterclaim is filed by the defendant to defend against the original claim. By filing a counterclaim, the defendant seeks to reject the plaintiff's claims or set off his claims. See: Popov V.V. ABC of a counterclaim // Arbitration and civil process. 2008. No. 4. S. 34 .. When a claim is made by several plaintiffs or against several defendants, the judge has the right to separate one or more claims into a separate proceeding (part 3 of article 151 of the Code of Civil Procedure of the Russian Federation). The plaintiff's claim is also mentioned in Part 4 of Art. 132 Code of Civil Procedure of the Russian Federation, which states that the plaintiff must attach to the statement of claim the documents on which he bases his claim. When the plaintiff renounces the claim, he does not renounce his appeal to the court, but precisely his claim against the defendant. If the court decides to secure the claim, then it is a matter of ensuring the implementation of the substantive legal claim of one person against another in the future.
The definitions of a claim contained in the literature, only as a means of initiating a process or as a means of applying for the protection of a right, are not accurate and do not reveal its entire content. Indication of disagreements about the concept of a claim and its elements that existed in the theory of civil procedure, see: E.V. Textbook of civil procedure / Ed. V.A. Tomsinov. M., 2003. S. 603 .. These definitions do not limit the claim from other appeals to other state bodies or appeals in other types of civil proceedings (statement or complaint in cases of special proceedings and proceedings in cases arising from public legal relations). An appeal to a court or other jurisdictional body will be a claim only if it is accompanied by a requirement to the other party and the court to consider the case in a certain claim procedure.
Claims are such claims when a dispute arose between the plaintiff and the defendant in connection with the violation or contestation of a subjective right and the parties did not resolve it without the intervention of the court, but submitted it for consideration and resolution. The entire legal claim form is devoted to verifying the validity of the claim of the plaintiff to the defendant, and if it is justified, then satisfy this claim. The concept of a claim as a claim of one person to another has been repeatedly indicated in the works of Russian scientists. So, the famous Russian proceduralist E.V. Vaskovsky wrote: "In the course of action, the claims filed by some persons against certain other persons are subject to verification." In addition, he pointed out that "the court establishes the legitimacy of the plaintiff's claims against the defendant." See: Vaskovsky E.V. Decree. op. pp. 156, 346, 349, 350; Civil process / Ed. V.V. Yarkov. M., 2004. S. 256 - 257. Otherwise, the court dismisses the claim. The court refuses not to appeal to the court, but specifically to the plaintiff's claim to the defendant, since the appeal has already taken place and the judge accepted the statement of claim. If there is no claim by the plaintiff against the defendant, then there is no claim.
The single concept of a claim and its two sides are mentioned in the scientific literature: "The single concept of a claim seems to be more correct and scientifically substantiated. Such a concept of a claim corresponds to both legislation and judicial practice" Chernykh I.I. Commentary on the Civil Procedure Code of the Russian Federation / S.A. Alekhina, A.T. Boyner, V.V. Blazheev and others; Rep. ed. M.S. Shakarian. S. 300 .. A claim is a single concept that has two sides: substantive law and procedural law. Both sides are inseparable unity. If we consider the claim differently, then it will be impossible to understand the legal nature of such institutions as a counterclaim, the connection and separation of claims (Articles 137, 151 of the Code of Civil Procedure of the Russian Federation, etc.).
A claim should be considered a substantive legal claim of one person against another, brought to the court for consideration and resolution in a procedural manner, arising from a disputed substantive legal relationship and based on certain legal facts.
The elements of the claim characterize its content and legal nature. The claim consists of two elements: subject and grounds. The law and judicial practice with these two elements exhaust the content of the claim as a single concept. In the educational literature, there are different points of view on the issue of the elements of the claim, their essence, content and number See, for example: Civil procedural law / Ed. M.S. Shakarian. M., 2004. S. 199. The law says that the change of the claim takes place according to its subject and grounds (Article 39 of the Code of Civil Procedure of the Russian Federation). These elements are important for determining the scope of the defense against the claim. They also establish the direction, course and features of the trial for each process.
Civil procedural legislation establishes that the statement of claim must indicate the claim of the plaintiff to the defendant and the circumstances on which the plaintiff bases his claim (Articles 131, 151 of the Code of Civil Procedure of the Russian Federation). In this regard, the subject of the claim is that specific substantive claim that the plaintiff makes against the defendant and regarding which the court must decide on the case. In addition to the subject of the claim, there is the so-called material object of the dispute, which can be a specific thing, object, amount of money to be transferred, recovered. The material object of the dispute is included in the subject of the claim. In particular, when it comes to increasing or decreasing 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 are circumstances that create, change the rights and obligations of the parties or prevent the emergence of rights and obligations (Isakov V.B. Legal facts in Russian law. M., 1998. P. 2), on which the plaintiff establishes a substantive claim against the defendant. According to paragraph 5 of Art. 131 of the Code of Civil Procedure of the Russian Federation, the statement of claim must indicate the circumstances on which the plaintiff bases his claim against the defendant. The basis of the claim is that from which the plaintiff derives his claims against the defendant. Such legal facts can be: the conclusion of a contract, marriage and its registration, causing harm. In most cases, the basis of the claim is a complex factual composition, when it includes several legal facts that form the basis of the claim. We can agree with the definition of the basis of the claim as the circumstances from which the plaintiff's right to claim arises, on which the plaintiff bases them Karkhalev D. Subjective right to protection // Lawyer. 2008. No. 1. P. 45..
All legal facts constitute the factual basis of the claim. In addition to the factual basis of the claim, it is also possible to single out the legal basis. Appealing to the court, the plaintiff expects that his subjective right will be protected. However, in order for his claim to be satisfied, this claim must be based not only on facts, but also on the relevant rule of law. You can only defend a claim that is based on the law. This means that, in addition to legal facts, it is necessary to establish a substantive legal norm that constitutes the legal basis for the claim Vaskovsky E.V. Decree. op. S. 350..
One cannot but agree that each claim considered by the court must be directed against a certain person, based on specific factual and legal data. Code of Civil Procedure of the Russian Federation does not contain an indication of the need to refer to the legal basis of the claim in the statement of claim. However, in other normative acts, which refer to the content of the statement of claim, the legal basis of the claim is indicated. So, the legal basis of the claim is stated in the Arbitration Procedure Code of the Russian Federation (hereinafter referred to as the Arbitration Procedure Code of the Russian Federation), § 9 of the Rules of the International Commercial Arbitration Court http://www.unodc.org., in Art. 23 of the Arbitration Rules for resolving economic disputes at the Chamber of Commerce and Industry of the Russian Federation http://www.unodc.org. and etc.
There is a substantive-legal and procedural-legal classification of claims. The substantive nature of claims is different. The difference is manifested in the fact that claims may differ from each other in the nature of the disputed legal relationship and the requirement with which the plaintiff addresses the defendant. The material-legal classification of claims makes it possible to correctly determine the direction and scope of judicial protection, the jurisdiction of the dispute and its subject composition, as well as to identify the specifics of the procedural features of this dispute.
By their nature, the procedural purpose of all claims is the same. It consists in protecting the violated or contested subjective right of the plaintiff. According to the procedural purpose, claims are divided into claims: a) for award; b) recognition. A detailed study of these species is beyond the scope of this topic. Here we only note that claims for award are the most common in judicial practice. In claims for award, the plaintiff, applying to the court for the protection of his right, asks to recognize his disputed right, and in addition, to adjudge the defendant to commit certain actions or to refrain from doing them, and the purpose of claims for recognition is to eliminate the controversy and uncertainty of law Claims for recognition, or establishing claims, already existed in the Roman civil process under the name "prejudicial claims". See: Novitsky I.B. Roman law. Textbook. M., 1998. S. 111.
In addition to claims for recognition and claims for award, the legal literature indicates the emergence of class claims or claims in defense of an indefinite circle of persons and indirect (derivative) claims. The basis for the classification of these claims, according to some authors, is the nature of the protected interests Abolonin G.O. class action lawsuits. M., 2001. S. 21 - 23 .. Supporters of this position indicate: "A class action is a kind of synthesis of two procedural concepts - complicity and representation" Kolesov P.P. Class action lawsuits in the US. M., 2004. S. 13 .. However, the proposed classification of claims did not receive due scientific justification. One cannot but agree that "the theory of indirect (derivative) claims requires significant clarifications", as well as the theory of corporate "group" claims by Osokina G.L. Russian Civil Procedure Course. A common part. Tomsk, 2002. S. 89 - 103. Thus, the division of claims into two types exhausts the classification of claims according to their procedural purpose.
So, a statement of claim is an important means of initiating a process on a specific dispute. According to the law, any interested person may apply to the court for the protection of a violated or contested right. Such an appeal is called a claim.
According to the Constitution, every citizen of the Russian Federation can count on protection in court. In case of violation of his freedoms and interests, the subject may send a request for their restoration. Refusal to apply to the court is unlawful. The claims of the person are formulated in the claim. Let's take a closer look at what it is. Claim Forms will also be presented in the article.
General information
In case of violation of the rights and freedoms, citizens have the right to their protection. The court acts as a state body ensuring the restoration of infringed interests. If considered, then it is a means of activating the activities of the authorized instance. The procedure within which the interests of the subject are protected is called legal proceedings. It involves the plaintiff, the defendant, the prosecutor, third parties.
Subjects
The plaintiff can be either an individual or an organization. This subject expresses its claims in case of violation of any of its interests. The defendant, respectively, is a participant in the proceedings called to account. Third parties may appear on either side. Some of these entities may express independent claims against any of the parties to the dispute.
The concept of a claim in the arbitration process, its elements and types
The interested subject, wishing to restore his interests, applies to the court with a corresponding claim. The concept of a 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, basis and subject. The second approach provides only the last two components. Most lawyers agree that the structure should highlight not only the subject and the basis, but also the content. In this case, a clearer formulation is acquired concept and signs of a claim. The latter, in turn, act as classification criteria.
Claims are divided on substantive and procedural grounds. In practice, the following classifications are used. According to the first criterion, vindication and negatory claims are distinguished, according to the second - claims for award, recognition, change / termination of legal relations. Their registration is carried out in accordance with the norms of the agrarian and industrial complex. It also includes these components. As part of such proceedings, claims are filed under the Code of Civil Procedure.
Considering, let us dwell in more detail on its essence. The content of the claim is actually an action of the court, the implementation of which is requested by the person concerned. It is determined by the applicant. In this case, the subject uses the means provided for in the law. The plaintiff's claim may be directed to:
- Imputation to the defendant of the commission of a certain action / inaction. For example, it can be compensation for the loss incurred, payment of a sum of money, etc.
- Recognition of the existence or absence of a legal relationship, obligation or right.
Item
It can be an interest that is protected by law, as well as a specific legal relationship in general. The subject must be distinguished from the first concept is more voluminous. The object of the dispute is also included in the subject of the claim.
Base
It is formed by the circumstances indicated by the plaintiff. He connects his claim with them as with legally significant facts. The basis may be a transaction, contract, damage, the onset of a specified period or any conditions. As a rule, it contains not one, but several facts. Their totality 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 through the close relationship of its components. The facts constituting its basis are brought under the hypothesis of the corresponding material norm. These circumstances also point to the legal nature of the relationship acting as the subject of the claim. It, in turn, determines the content. What is to be protected determines the form of protection. For example, monetary compensation or the provision of a thing is secured by an award, the absence/existence of a relationship is secured by recognition, and so on.
The concept and types of claims
The claim for the award is aimed at the forced fulfillment of the defendant's duty, confirmed by the court. In this case, the right of the plaintiff to demand certain behavior from the second participant in the dispute, as a result of his failure to fulfill the assumed obligation on a voluntary basis, acts as a subject matter.
The grounds for filing such a claim are, first of all, the circumstances with which the emergence of the legal possibility itself is associated. For example, the activities of a furniture manufacturing enterprise, the work of an artist in creating a picture, etc. In addition, the grounds are the facts that are associated with the emergence of the right to file a claim. This may be the onset of a specified period, a violation of interest (for example, administrative action).
The concept of content is associated with the requesting part of the document. The claim may be aimed at confirming any relationship or right. In this case, one speaks of a positive claim. If the claim is aimed at confirming the absence of a legal opportunity or relationship, it is called negative. A transformative claim is a claim that involves a change / termination of the interactions between the applicant and the defendant. The subject in this case will be the possibility of the person concerned to unilaterally withdraw from the relationship. For example, a request to terminate the contract may be filed.
The grounds are facts that have a double meaning. First of all, these are the circumstances with which the emergence of the relationship that is subject to termination / change is associated. In addition, the basis contains facts concerning the possibility of implementing transformative powers.
Vindication
The concept of a claim can be considered within the framework of substantive norms. One of the most common remedies in court is vindication. It involves filing a claim for the recovery of material assets from illegal use. A vindication claim is an extra-contractual claim of the owner who does not own the thing against its actual owner.
Conditions
In order to submit a vindication requirement, it is necessary to comply with a number of rules provided for by law. First of all, the title owner must be deprived of the thing. That is, the object must be removed from its possession. It is also necessary that the property, which the owner has lost, be preserved in kind and be in the actual possession of another subject. If the thing was destroyed, processed, used, then the right of ownership is terminated. In such a situation, the title owner can only count on the protection of property interest. He has the right to present a claim for damages or unjust enrichment.
Explanations
Features of illegal possession are defined in Art. 301 GK. In accordance with the norm, not only the owner can file a vindication claim, but also another entity that owns the thing by law or contract. For example, it may be a tenant, commission agent, custodian. The owner of a real right to property - operational management, lifelong possession, economic management - also has the opportunity to send a vindication claim.
Income controversy
As part of the consideration of vindication claims, questions often arise regarding the fate of the profit received during the use of the thing by the illegal owner, as well as the costs incurred in connection with this. The rules for such calculations are fixed in Article 303 of the Civil Code.
The norm establishes the difference between conscientious and unscrupulous owners. The latter are charged with the obligation to compensate the title owner of the thing for all the profits received from its illegal use. A bona fide owner should reimburse income only from the moment he learned or could become aware that the object is in violation of the rules, or received notice of the claim.
Nuances
When applying Article 303 in practice, the following circumstances should be taken into account. First of all, income within the norm will be not only cash, but also natural products(harvest, for example). In addition, we are talking about profits that are received or could be extracted as a result of illegal possession of property. The actual owner, in turn, may demand that the owner reimburse the costs of maintaining the thing. At the same time, both a conscientious and an unscrupulous subject have this opportunity. The obligation can be imputed from the time the title holder has acquired the right to receive income illegally extracted from the use.
Negative claim
Consider a claim. In civil proceedings, a dispute may be considered regarding the removal of obstacles to the implementation by the subject of his legal possibilities for the use, disposal and possession of material values. The basis for the commencement of such proceedings is a negative claim. This is an extra-contractual claim of the owner, who owns the thing, to a third party. The subject may request the removal of any obstacles, even if they do not involve dispossession of the object. In this case, the requirement may be aimed at preventing possible violations, if such a threat exists. In such cases, the person concerned will not need to prove that the actions of the defendant interfere with the normal use and disposal of property, unless the latter himself confirms the legality of his behavior.
Procedure for making a claim
All samples are filled in general rules. Regardless of the type of legal proceedings, the content of the documents must comply with the requirements of the law. In order for a claim to be accepted for production, it must be properly drafted. The law establishes a list of mandatory details. These include:
Essence of the claim
The content indicates the time, place of signing of the agreement, its subject. The following is a condition that was not met. The request part specifies the request itself. For example, "I ask you to recover the losses incurred in connection with the violation of contractual terms in full." In this case, it is advisable to refer to the norms of the law, which provide for the corresponding liability.
The list of applications may contain documents confirming the facts set forth in the claim. This may be a copy of the contract, a receipt, an invoice, a bank statement, and so on. If the claim is related to compensation, it is recommended to draw up a calculation. He will justify the amount that the interested person asks for as compensation. A receipt confirming the payment of the fee is attached to the claim. If a representative acts on behalf of the interested individual or organization, he must present a power of attorney.
§1. The concept of a claim
In the Explanatory Dictionary of the Russian Language S.I. Ozhegova and N.Yu. The Swedish statement of claim is interpreted as an application to the court or arbitration for the resolution of a civil dispute and is identified with the concept of "claim".
Unfortunately, the law does not define a statement of claim, so an article on this important legal topic has to begin with a reference to an explanatory dictionary.
However, the reader should not be disappointed in advance. The essence of the statement of claim to the court (arbitration court), the authors of the dictionary set out quite accurately. We will try to delve into the topic of the article, relying solely on legal sources.
There is no doubt: addressing the court is one of the main signs of a statement of claim, which distinguishes it from statements of another kind, since no state body, except for the court, is authorized to consider statements of claim (Article 131, Clause 1 of the Code of Civil Procedure).
The second integral feature of a statement of claim in the dictionary is the purpose of filing it with the court - the resolution of a civil dispute, i.e. a dispute arising from civil law relations (for example, about a thing, about causing harm, etc., etc.).
And you can’t argue with this statement, since not every statement, including an application to the court, is intended to resolve a civil dispute (a dispute about civil law), the subject of which is a violation or threat of violation of the rights, freedoms or legitimate interests of the plaintiff.
The fact is that not only claims, but also other statements are sent to the courts. For example, they are considered by the courts on the basis of an application, and not a statement of claim; the application, and not the statement of claim, is the basis for the consideration of the extradition case by the court.
Meanwhile, unlike a statement of claim, the purpose of statements in special and writ court proceedings is not to resolve the dispute, but to establish the presence or absence of the indisputable rights of the applicant, to confirm which he legally requires a court decision (announcement for the dissolution of marriage with him; recognition of the fact of being dependent citizen to assign him a pension, etc.).
When establishing a dispute about the right in cases of this category, the court leaves the corresponding application without consideration and invites the parties to resolve the disputed relations in the court proceedings (see, for example, paragraph 3 of Article 263 of the Code of Civil Procedure), which is regulated by subsection II of section II of the Civil Procedure Code of the Russian Federation (hereinafter referred to as the Code of Civil Procedure).
For example, in order to recover an indisputable (based on documents) debt on utility bills, an application for a court order is filed. Writ proceedings are carried out by a judge without notifying the debtor and calling the parties to court, which in principle excludes a dispute between the applicant and the debtor.
Meanwhile, if the debtor, who received the notice of the issuance of the court order, does not agree with the procedure for its execution (disputes), the judge is obliged to cancel the order and invite the applicant to collect the debt in the court proceedings (Article 129 of the Code of Civil Procedure).
A civil dispute is not always to be taken literally. Of course, the parties to the case, which in the lawsuit are called the plaintiff and the defendant, can directly argue about the amount of debt under the contract, remuneration for work and at the same time bring arguments and evidence in favor of their position.
At the same time, the inaction of the debtor to fulfill the obligation in favor of the creditor is often recognized as a civil dispute.
So, the defendant, who did not recognize the claim for the recovery of the debt, filed a petition in court to dismiss the case due to the absence of a civil dispute, since he recognized the debt to the plaintiff earlier and recognizes it now.
In response to this statement, the judge reasonably remarked to him: “Why don’t you repay this debt in this case? Return the debt to the plaintiff, then the dispute will end, and the case will be closed!”
Civil disputes most often arise between citizens and (or) legal entities, consisting among themselves in relations, which are called legal obligations (obligations).
Obligations arise from civil law contracts (), facts of harm, unjust enrichment (non-contractual obligations), other grounds provided for by the Civil Code of the Russian Federation (hereinafter referred to as the Civil Code) and other sources of civil law listed in paragraph 2 of Article 3 of the Civil Code.
For example, under an obligation arising from a purchase and sale agreement, the buyer, who paid the seller the price for the thing, has the right to demand that he transfer this thing to (), and the seller is obliged to fulfill this requirement.
If the seller refuses to transfer the thing, a civil dispute arises, which gives the buyer a legal basis to apply for protection of his violated right to the thing in court with a demand to take it away from the seller, which must be stated in the statement of claim.
Not all claims for obligations named in the Civil Code are subject to judicial protection. Such requirements, for example, include requirements related to the organization of games and betting and participation in them (). Therefore, it is impossible to obtain fulfillment of an obligation arising from participation in a bet by filing a statement of claim with the court.
Denying the participants of games and bets to resolve their disputes in court, the legislator, apparently, was guided by moral and ethical considerations. It remains for us to note that agreements (contracts) devoid of actionable protection (pactum) have been known since the time of Roman law.
When preparing a statement of claim, it should be borne in mind that it can only dispute a civil legal relationship based on the equality of the rights of its participants and regulated by civil law (Article 1 of the Civil Code).
Meanwhile, legal disputes often arise from administrative and other public legal relations that do not imply equality of rights of participants, are based on the principle of power - subordination and are regulated by the norms of administrative and other public law. Civil law does not apply to disputes arising from such relations (clause 3, article 2 of the Civil Code).
For example, the tax authority requires a citizen to pay tax. Relations between a citizen and a tax authority are governed by tax law. Therefore, if a citizen does not agree with the requirement of the tax authority, an administrative dispute arises, which can be resolved in the course of administrative proceedings by filing an administrative claim. The requirements for such an application are regulated by the Code of Administrative Procedure of the Russian Federation.
Apparently, it's time to sum up the concept of a statement of claim, although one can write about all its details indefinitely.
To make a decision to protect your right by filing a lawsuit in court, you need to remember a few simple (?) Things.
1. A dispute arose between you and the person who, in your opinion, violated or threatened to violate your subjective right, because the violator does not want to restore this right voluntarily.
2. The violated right is a civil right, 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 a court, an arbitration court or an arbitral tribunal in accordance with the jurisdiction of cases established by procedural legislation (Article 11 of the Civil Code).
4. Your claim to the defendant in the statement of claim for the restoration of the right must comply with the methods of protecting civil rights, which are named in Article 12 of the Civil Code (recognition of the right, restoration of the situation that existed before the violation of the right, etc.). Requirements not provided for in Article 12 of the Civil Code are not satisfied by the courts.
The concept of a claim against a defendant, which is called a claim, will be discussed in the next paragraph.
§2. The concept of a claim
The ancient Roman jurist Celsus called the claim (actio) the right to demand in court what is due, "what you should." This definition of a claim is still relevant and is actually reproduced in the current Code of Civil Procedure, which recognizes as a claim the claim of the plaintiff, set out in the statement of claim (subclause 4, clause 2, article 131 of the Code of Civil Procedure).
For example, a claim is a claim by a plaintiff to recognize his ownership of a dwelling. It is clear that the material content of the claim depends on the specific dispute considered by the court. Here we will consider only general procedural issues related to the claim.
The claim is a mandatory, but not the only part of the statement of claim. In addition to the claim itself, it must contain other mandatory information (elements) provided for in Article 131 of the Code of Civil Procedure, an indication of the defendant's violation of the plaintiff's rights, the circumstances of these violations, evidence confirming them, etc.
Therefore, put an equal sign between the statement of claim and the claim, as respected authors do explanatory dictionary, of course, it shouldn't.
Meanwhile, the concepts of "claim" and "statement of claim" are so closely related that their separate application in practice is legally meaningless.
Thus, a statement of claim that is not equipped with an element of a claim will not entail legal consequences and will be left by the court without movement on the basis of Article 136 of the Code of Civil Procedure as an application filed without complying with the requirements of Article 131 of the Code of Procedure.
The absence of a requirement (claim) in the statement of claim, for example, to take away a thing from the defendant, will essentially turn this statement into a complaint, consideration of which in the order of action proceedings is not allowed.
Therefore, if the plaintiff does not comply with the judge's instruction to supplement the application with a claim within the prescribed period, it is returned to the plaintiff and is considered not filed.
The same consequences will entail the filing of a statement of claim, consisting of only one claim, not equipped with other mandatory elements of the statement of claim.
The claim acquires independent legal significance only in a few cases listed in the Code of Civil Procedure.
For example, paragraph 3 of Article 134 of the Code of Civil Procedure prohibits re-claiming a claim against the same defendant, on the same subject and basis, if the court has already refused to accept the statement of claim in which such a claim was contained (an identical claim).
A similar prohibition applies if there is a court decision that has entered into force on an identical claim, or a court ruling to terminate the proceedings in connection with the plaintiff's refusal of an identical claim, or the court has previously approved an amicable agreement of the parties on the same claim.
In these cases, the claim is subject to independent analysis in order to identify its subject and grounds.
Judicial practice recognizes the substantive claims of the plaintiff against the defendant as the subject of the claim (see, for example, Resolution of the Presidium of the Supreme Arbitration Court of the Russian Federation dated April 21, 2009 No. 1598), and the basis is the circumstances from which the substantive claims follow.
In the example of the statement of claim given by us, the subject of the claim is the claimant's demand to take away the thing from the defendant, based on the norms of substantive law, namely, articles 398 and 463 of the Civil Code of the Russian Federation.
The basis of the claim is the circumstances from which the plaintiff's claim against the defendant arises. These are the circumstances of the conclusion of a contract for the sale of a thing, non-performance of the contract by the defendant and evidence of these circumstances.
Thus, the subject and basis of the claim have a direct logical and legal connection, by establishing which the court, if necessary, has the procedural opportunity to exclude duplication of the claim.
§ 3. Content of the statement of claim
Mandatory requirements for the content of the statement of claim are set out in the law (Articles 131,132 of the Code of Civil Procedure). They should be followed in the preparation of the application.
On the next page of the site, we will list these requirements, give some of them comments and try to draw up
