Lecture number 7. Mandatory proceedings

1. The concept of writ proceedings

Order production is a separate type of production, which is carried out in a civil process. At the end of writ proceedings, a court order is issued, which has the force of an independent judicial decision in civil cases, the range of which is specifically defined by procedural legislation.

Writ proceedings are a novelty of the Code of Civil Procedure of the Russian Federation, since this type of proceedings was not provided for in the Code of Civil Procedure of the RSFSR.

So, court order - a court ruling issued by a single judge on the basis of an application for the recovery of sums of money or for the recovery of movable property from the debtor (Article 121 of the Code of Civil Procedure of the Russian Federation). It should be noted that a court order can be issued on the basis of an application only for the recovery of sums of money and for the recovery of movable property.

From the definition of a court order, it follows that writ proceedings are considered by a justice of the peace alone, who acts on behalf of the court of first instance.

However, if the justice of the peace is challenged and it is impossible to transfer the case to another justice of the peace, or if there is no justice of the peace in the given district, the case may also be considered by the district court alone.

Need to know requirements for which a court order can be issued (Article 122 of the Code of Civil Procedure of the Russian Federation). A court order is issued if:

1) the claim is based on a notarized transaction;

2) the claim is based on a transaction made in a simple written form;

3) the demand is based on a notary's protest of the bill of non-payment, non-acceptance and undated acceptance;

4) a claim has been made for the recovery of alimony for minor children, not related to establishing paternity, contesting paternity (maternity) or the need to involve other interested parties;

5) a demand has been made to recover from citizens arrears in taxes, dues and other obligatory payments;

6) a claim has been made for the recovery of wages accrued but not paid to the employee;

7) a claim has been filed by the internal affairs body, bailiff unit for the recovery of expenses incurred in connection with the search for the defendant, or the debtor and his property, or the child taken from the debtor by a court decision, as well as the costs associated with the storage of the arrested property seized from debtor, and storage of the debtor's property evicted from the dwelling occupied by him.

Order production has a number of features. There is no plaintiff and defendant the parties are referred to as "creditor" ("collector") and "debtor". The initiative to initiate writ proceedings, of course, belongs to the creditor, whose material right has been violated by the debtor.

It is worth noting that in writ proceedings, the prosecutor can also act in defense of the creditor in the process. In this case, this is possible if a citizen, for health reasons, age, incapacity and other valid reasons, cannot protect the violated right.

It must be remembered whether the reason for the absence of the creditor is valid or not. As a rule, all types of proceedings in civil proceedings go through all stages of civil proceedings, with the exception of exceptional stages that arise on the initiative of the persons participating in the case (proceedings in the court of appeal, cassation, supervisory instance).

There is no trial stage in writ proceedings. This is the main difference between writ proceedings and other types of proceedings in civil proceedings.

When issuing an order, the presence of the debtor is not required.

The debtor is subsequently notified of the issuance of the court order by presenting the debtor with a copy of the court order, which, in turn, has the right to file objections regarding its execution within 10 days from the date of receipt of the order (Article 128 of the Code of Civil Procedure of the Russian Federation). There is one more difference (or one more feature) of writ proceedings.

To execute a court order, it is not necessary to issue a writ of execution, since, according to the norms of procedural legislation, it is at the same time an executive document and is executed in the manner established for the execution of court decisions (Part 2 of Article 121 of the Code of Civil Procedure of the Russian Federation).

There is one more point to which attention should be paid.

A distinctive feature of order production is also that the court order on the stated requirements must be issued within 5 days from the date of receipt of the application for the issuance of a court order to the court.

2. Right to apply for a writ

The right to file an application for a court order belongs to the person whose material right has been violated. When issuing a court order on the merits of the stated claim, the judge is obliged to indicate in it the reimbursement of expenses for the payment of the state fee at the expense of the debtor.

If the debtor raises objections to the execution of the court order, the court cancels the court order and notifies the claimant of this within 3 days. At the same time, the court explains that the claim declared by the debtor can be considered in the course of action proceedings (Article 129 of the Code of Civil Procedure of the Russian Federation).

The basis for the initiation is the application of the claimant (creditor). The procedural law establishes the requirements that must be met when writing a statement.

One of the mandatory features is a written form (Article 124 of the Code of Civil Procedure of the Russian Federation).

The application for a court order must include:

1) the name of the court to which the application is submitted;

2) the name of the exactor, his place of residence or location;

3) the name of the debtor, his place of residence or location;

4) the claim of the exactor and the circumstances on which it is based;

5) documents confirming the validity of the claim of the recoverer;

6) list of attached documents;

7) in the case of claiming movable property, the application must indicate the value of this property.

An application for issuing a court order is signed by the recoverer or a person authorized to perform these actions. The powers of the representative must be formalized by a power of attorney.

In contrast to the statement of claim, the requirements of which are specified in Art. 131 Code of Civil Procedure of the Russian Federation, in the application for issuing a court order, there is no need to indicate the surname, name of the representative, as well as the scope of powers granted to him.

This is due to the specifics of order production.

Writ proceedings are carried out without summoning the parties to trial, without the parties presenting evidence.

It also suggests that the creditor's application must already be based on substantive law.

On the acceptance of the application for court proceedings, the judge issues a ruling, on the basis of which writ proceedings are initiated.

The court is also authorized to refuse to accept the application, return the application and leave the application without movement. For writ proceedings, there is no separate rule governing the refusal, return or abandonment of an application, but the general rules that are indicated for action proceedings are applied (Articles 134, 135, 136 of the Code of Civil Procedure of the Russian Federation).

Writ proceedings are characterized by a refusal to accept an application if the requirements on the basis of which the application is written are not contained in the list specified in Art. 122 Code of Civil Procedure of the Russian Federation.

3. Content of the court order

A court order is both a court decision on the presented requirements and an executive document. In this regard, the court order must contain all the data necessary for its proper execution.

Like a court decision issued in the course of proceedings in other types of proceedings, a court order must meet the conditions of legality and validity. However, the legality and validity of the court order are quite specific.

Any judgment consists of four parts:

1) introductory;

2) descriptive;

3) motivational;

4) resolutive.

The court order contains only two parts: introductory and operative.

However, a court order will be considered lawful and justified if the issuance of a court order was based on the relevant norms of procedural and substantive law.

It should be noted that the court order acquires the force of an executive document only after it enters into force, i.e. after 10 days.

In accordance with Art. 127 Code of Civil Procedure of the Russian Federation the court order must contain:

1) production number and date of issue of the order;

2) the name of the court, the surname and initials of the judge who issued the order;

3) the name, place of residence or location of the claimant;

4) name, place of residence or location of the debtor;

5) the law on the basis of which the claim is satisfied;

6) the amount of sums of money to be collected or the indicated movable property to be claimed, indicating its value;

7) the amount of the penalty, if its collection is provided for by federal law or the contract, as well as the amount of penalties, if any are due;

8) the amount of the state duty to be collected from the debtor in favor of the recoverer or to the income of the relevant budget;

9) details of the exactor's bank account, to which the funds subject to collection must be transferred, if the foreclosure is carried out using funds from the budgets of the budget system of the Russian Federation.

When collecting alimony for minor children, the date and place of birth of the debtor, his place of work, the name and date of birth of each child for the maintenance of which the alimony was awarded, the amount of payments collected monthly from the debtor, and the period for their collection are indicated.

The court order is drawn up on a special form in two copies, which are signed by the judge. One copy of the court order remains in court proceedings. A copy of the court order is made for the debtor.

Author: Gushchina K.O.

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