Lecture number 8. Claim proceedings

1. The concept of a claim. Features characterizing the claim

There is no single definition of a claim in civil procedural legislation. Among scientists there is also no single definition, but there are several points of view on the concept of "claim":

1) from a substantive point of view, a claim is a material claim itself, that is, a legal relationship;

2) from a procedural and legal point of view, a claim is a means of protecting a violated or contested right or legally protected interest of a subject of civil legal relations.

From a substantive and procedural point of view, it should be characterized both from the material and from the procedural side. Since disputes about law are resolved not only by courts of general jurisdiction, but also by other jurisdictional bodies, representatives of this point of view call a claim filed in court or another jurisdictional body for consideration and resolution in a certain procedural order the substantive claim of one person to another, arising from the disputed substantive legal relationship8.

In civil procedural law, there are several features that characterize the claim: subject, basis, content, as well as some authors refer to the parties.

The subject of the claim is a violated right.

Under grounds of action should be considered those facts that indicate a violation of the rights protected by law interests. In the statement of claim, the plaintiff must indicate what the violation or threat of violation of rights, freedoms or legitimate interests is, that is, the basis that prompted the plaintiff to bring the statement of claim to court to protect his violated or disputed rights.

Content of the claim - a requirement to the court aimed at protecting and restoring a violated legally protected right or interest. Some authors highlight another feature - the parties to the claim. They hold this view because without the presence of parties with mutually exclusive interests, a claim cannot arise.

2. Types of claims

Scientists theorists distinguish 3 types of claims:

1) claims for award. In the legal literature, they are also called enforcement actions, as they are the owners of the executive force. Lawsuits for awards are aimed at the enforcement of a judgment. It follows from this that a judgment given in an action for an award must always be enforced, if not voluntarily, then by force;

2) claims for recognition. The parties apply with this claim to confirm this or that fact, otherwise they are called establishing claims. So, for example, a typo in the surname was made in the birth certificate of a citizen. When entering, for example, into the right of inheritance, there are disagreements. In order to enter into the right of inheritance, it seems necessary to eliminate these shortcomings, i.e., a court decision is necessary. Claims for recognition can be either positive or negative. Positive claims are aimed at establishing the existence of a particular legal relationship, and negative claims are aimed at establishing the absence of a particular fact;

3) transformative claims. Claims aimed at making decisions whose content has a substantive legal effect - law-forming or law-terminating. [8] In this case, the subject of a transformative claim is the plaintiff’s right to demand from the court the establishment, change or termination of a particular legal relationship, right or obligation.

3. Making a claim

A person who believes that his rights or legitimate interests have been violated or challenged has the right to file a claim. The form of appeal to the court in cases of action proceedings is a statement of claim, which is submitted in writing.

Claim under Art. 131 Code of Civil Procedure of the Russian Federation must contain the following information:

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

2) the name of the plaintiff, his place of residence or, if the plaintiff is an organization, its location, as well as the name of the representative and his address, if the application is submitted by a representative;

3) the name of the defendant, his place of residence or, if the defendant is an organization, its location;

4) data on violation or threat of violation of the rights, freedoms or legitimate interests of the plaintiff and his claim;

5) the circumstances on which the plaintiff bases his claims and the evidence confirming these circumstances;

6) the price of the claim, if it is subject to assessment, as well as the calculation of the sums of money recovered or disputed;

7) information on compliance with the pre-trial procedure for applying to the defendant, if this is established by federal law or provided for by the contract;

8) a list of documents attached to the application.

Place of residence of a citizen the place where a citizen permanently or predominantly resides is recognized.

Place of residence of minorsunder fourteen years of age, or citizens under guardianship, the place of residence of their legal representatives, adoptive parents, and guardians is recognized (Article 20 of the Civil Code of the Russian Federation).

Place of residence of persons sentenced to imprisonment, is their place of residence before conviction, but along with it it is necessary to indicate the postal address at the place of serving the sentence. This is necessary to send the plaintiff court notices and other documents presented by other persons participating in the case.

Location of the legal entity is the place of its state registration, unless otherwise specified in its constituent documents. State registration of a legal entity is carried out at the location of the property of the legal entity, which is indicated in the constituent documents by the founders.

If the required application is submitted by the prosecutor in defense of the interests of the Russian Federation, constituent entities of the Russian Federation, municipalities or in defense of the rights, freedoms and legitimate interests of a citizen or an indefinite circle of persons, then it must be indicated what exactly their interests are, what right is violated, and it must also contain a reference to a law or other regulatory legal act that provides for ways to protect these interests. The statement of claim must be signed by the plaintiff or a representative who, in accordance with the procedure established in the procedural legislation, is entitled to sign the statement and present it to the court. The rules for filing a statement of claim by the prosecutor also apply to the actions of state authorities, local governments, public organizations when they participate in a case in order to protect the rights and interests of others.

When filing a statement of claim, the plaintiff or his representative must indicate the normative act to which they refer, on the basis of which the court must make a judgment. In pursuance of the adversarial principle, pointing out the circumstances and citing relevant evidence, the defendant is given the opportunity to properly prepare for the protection of his rights and interests.

The following documents must be attached to the claim:

1) its copy in accordance with the number of defendants and third parties;

2) a document confirming the payment of the state fee;

3) a power of attorney or other document certifying the authority of the plaintiff's representative;

4) documents confirming the circumstances on which the plaintiff bases his claims, copies of these documents for the defendants and third parties, if they do not have copies;

5) calculation of the amount of money to be recovered or disputed, signed by the plaintiff, his representative, with copies in accordance with the number of defendants and third parties, etc.

4. Counterclaim

During the trial, the defendant may also bring a claim against the plaintiff to protect his rights and legitimate interests. A claim filed by a defendant against a plaintiff is called counterclaim. A counterclaim is characterized by the fact that it can only be declared in a process that has already arisen, and it is also considered together with the original claim filed by the plaintiff. Meanwhile, a counterclaim brought by the defendant against the plaintiff may be considered independently in a separate civil proceeding. Filing a counterclaim in an already initiated process is convenient for the court, since the interests of citizens who have applied for protection can be considered immediately, without initiating other civil proceedings. The possibility of filing a counterclaim is provided for by Art. 137 of the Code of Civil Procedure of the Russian Federation, which states that the defendant has the right, before the court makes a decision, to file a counterclaim against the plaintiff for joint consideration with the original claim. It should be noted that the presentation of a counterclaim is carried out according to the general rules for filing a claim, that is, the counterclaim must meet the requirements of Art. 131, 132 Code of Civil Procedure of the Russian Federation. Procedural law indicates on the conditions for accepting a counterclaim (Article 138 of the Code of Civil Procedure of the Russian Federation):

1) the counter claim is directed towards the offset of the initial claim;

2) the satisfaction of the counterclaim excludes, in whole or in part, the satisfaction of the initial claim;

3) there is a mutual relationship between the counterclaims and the original claims, and their joint consideration will lead to faster and more correct consideration of disputes.

5. Initiation of action proceedings

The basis for initiating civil proceedings in a case is the acceptance of a statement of claim for proceedings. So, if the above requirements for the statement of claim are not observed, the court may make the following decision: refuse to accept the statement of claim, return the statement of claim, leave the statement of claim without movement.

The court may refuse to accept a statement of claim in the following cases (Article 134 of the Code of Civil Procedure of the Russian Federation):

1) the application is not subject to consideration and resolution in civil proceedings, since the application is considered and resolved in a different judicial procedure;

2) the application is presented in defense of the rights, freedoms and legitimate interests of another person by a state body, local government body, organization, citizen who has not been granted such a right;

3) there is a court decision that has entered into legal force on a dispute between the same parties, on the same subject and on the same grounds;

4) there is an arbitral tribunal decision that has become binding on the parties and adopted in a dispute between the same parties, on the same subject and on the same grounds, except if the court refused to issue a writ of execution for the enforcement of the arbitral tribunal's decision.

The issuance of a court ruling to refuse to accept the statement of claim prevents the applicant from re-applying to the court with a claim against the same defendant, on the same subject and on the same grounds. In accordance with this law, it is possible for a person who was refused to accept a statement of claim to file a private complaint.

The return of the claim may take place if (Article 135 of the Code of Civil Procedure of the Russian Federation):

1) the plaintiff has not complied with the pre-trial procedure for settling the dispute or the plaintiff has not presented documents confirming compliance with the pre-trial procedure for settling the dispute;

2) the case is beyond the jurisdiction of this judge;

3) the statement of claim has been filed by an incompetent person;

4) the statement of claim is not signed or the statement of claim is signed or filed by a person who does not have the authority to sign it and present it to the court;

5) prior to the issuance of a court ruling on accepting the statement of claim for court proceedings, the plaintiff received an application for the return of the statement of claim;

6) in the proceedings of this or another court or arbitral tribunal there is a case on a dispute between the same parties, on the same subject and on the same grounds.

The issuance of a court ruling on the return of a statement of claim does not prevent a new appeal to the court with the same claim and on the same grounds.

If the statement of claim is drawn up without complying with the requirements provided for in Art. 131, 132 Code of Civil Procedure of the Russian Federation, the court issues a ruling on dismissal of a claim, about which the person who submitted the application is notified. Leaving the statement of claim without motion by the court enables the plaintiff to correct the existing shortcomings, without the elimination of which it is impossible to accept the statement of claim for proceedings. In its ruling on refusal to accept a statement of claim, the court sets the time limits within which the shortcomings must be eliminated. A private complaint may be filed against a court ruling to leave a statement of claim.

If, within 5 days from the date of receipt of the statement of claim by the court, he decided to accept the statement of claim, a court ruling is issued on the acceptance of the statement of claim and on the initiation of civil proceedings in the case. In this court ruling, the date of the court session is set, the parties, as well as third parties, the presence of the stated petitions are determined.

When a lawsuit is initiated, measures to secure the claim may be taken. The basis for securing a claim in accordance with Art. 139 Code of Civil Procedure of the Russian Federation is a statement of the persons involved in the case. Securing a claim is allowed in any state of the case, even if the failure to take measures to secure a claim may make it difficult or impossible to enforce a court decision. Upon receipt of an application from the persons participating in the case, the court shall issue a ruling on taking measures to secure the claim.

Measures to secure a claim can be (Art. 140 Code of Civil Procedure of the Russian Federation):

1) seizure of property belonging to the defendant and located by him or other persons;

2) prohibition to the defendant to perform certain actions;

3) prohibition of other persons from performing certain actions relating to the subject of the dispute, including transferring property to the defendant or fulfilling other obligations in relation to him;

4) suspension of the sale of property in the event of a claim for the release of property from arrest (exclusion from the inventory);

5) suspension of recovery under an executive document challenged by the debtor in court.

The list of measures to secure a claim is exhaustive. However, the legislator provides that the court may, if necessary, take other measures to secure the claim, which must meet the goals set for the court. Do not forget that persons who violate the restrictions established by the court are subject to a fine of up to 10 minimum wages. In addition, the plaintiff has the right to demand in court from these persons compensation for losses caused by failure to comply with the court ruling on securing the claim. The judge immediately informs the appropriate state bodies or local self-government bodies that register property or rights to it, as well as their restrictions (encumbrances), transfer and termination of the measures taken to secure the claim. At the initiative of the defendant or the court, measures to secure the claim may be cancelled. The issue of canceling the securing of the claim is considered at the court session. The parties are notified of the holding of the court session, but their failure to appear does not prevent consideration of the issue of canceling the measures to secure the claim. It is necessary to note some features of the appeal of the court ruling on securing the claim. Like all other court rulings, it can also be appealed in the manner prescribed by law. If the court ruling on securing the claim was issued without notifying the person who filed the complaint, then the term for filing the complaint is calculated from the day when such a person became aware of this ruling. It should also be noted that the defendant, after the entry into force of the court decision by which the claim was denied, has the right to bring a claim against the plaintiff for damages caused to him by measures to secure the claim.

Author: Gushchina K.O.

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