People who have experienced legal disputes on themselves know that a trial can go on indefinitely, to infinity. And the funds won (or property) are also not always easy to obtain: the debtor can either hide himself or hide the property. That is why the provision of the claim in the arbitration process is provided . The adoption of interim measures is possible during the process, regardless of its stage, if:
- difficulties with the execution of the decision made by the court are possible;
- there is a possibility of damage to the applicant.
In a statement, these reasons are necessarily justified (and necessarily with the provision of evidence). The satisfaction (or dissatisfaction) of the declared measures (securing the claim) will depend on the justification.
Let's consider in more detail. Suppose a defendant creates a threat of non-enforcement of a court decision:
- documents found confirming the pledge of property;
- there is a fact of an attempt to sell property;
- the debtor's property value is lower than the amount of debt;
- lack of turnover in the company;
- attempts to withdraw (or transfer) money from an account, etc.
It is clear that the defendant will not provide the plaintiff with a report on the state of his affairs, but some of the information is also open. For example, the plaintiff may well get acquainted with the financial statements of the defendant, stored by the statistical authorities. And the withdrawal of property (any transactions) is recorded by the Unified State Register.
Another example. Securing a claim requires the very nature of the claim (rights to shares, real estate, etc.). Prior to resolving disputes, property must be retained. His loss will not allow the court to make a decision. The plaintiff's assumptions about the possible sale by the defendant of the disputed property by the court will not be taken into account. Evidence of an attempt to sell property is needed.
The security of a claim is usually presented as:
- seizure of property;
- seizure of accounts (cash);
- prohibition of any manipulation of the subject of the dispute;
- assignment of responsibility for the condition of the subject of the dispute (destruction, damage, transfer, deterioration);
- suspension of implementation.
The above list, of course, is not exhaustive. Other interim measures may be taken, other than those that are contrary to law.
It is necessary to take into account the proportionality of interim measures to requirements: the seizure of property (or funds) must comply with the size of the stated requirements (not higher).
Infringement of interests of other (third) parties is unacceptable. For example, the seizure of debtor funds is not possible if the measure causes non-payment of salaries to employees, non-payment of debts to other creditors, etc. Here the issue will be decided according to the order of requirements.
An application for securing a claim may be submitted both with the statement of claim simultaneously and during the course of the proceedings. It is considered either on the same day or the next (no later), since it has the status of urgent (under Article 127 of the RF Arbitration Procedure Code).
Copies of the decision are sent to all persons involved in the case: the plaintiff, the defendant, in state and other bodies.
Such statements can be submitted, regardless of the stage of the process (even when the process is suspended), both to the very first instance, and to the appeal or cassation, or supervisory. By a separate application, the adoption of measures to enforce the decision is also considered.
An application for securing a claim may also be filed in the event of suspension of proceedings.
In case of refusal of interim measures, a new application (appeal) may be filed.
Sometimes defendants hastily alienate property in order to evade enforcement of court decisions. Securing a lawsuit in a civil proceeding neutralizes the defendant’s desire to hide property and money, transfer (rewrite, sell, donate) it to other persons, interfering with the enforcement of a court decision.