Claim proceedings in a civil proceeding are one of the forms of proceedings for applications submitted to a court. It occupies a whole subsection of the code, and some of its provisions apply to other forms of production (order, special and partially affects the stages of appeal, cassation and supervision).
The concept
The law does not define the proceedings. In the scientific literature, this concept is explained as the activity of the judicial authorities to consider claims and make decisions on them. The law describes the procedure for making a claim, considering it and making a decision on it.
Thus, the bulk of civil cases is dealt with. In addition, some provisions affect other forms of production.
What matters are considered
The law provides a listing of cases of action. Their participants are:
- citizens
- Organization
- authorities and municipalities.
The law stipulates that courts of general jurisdiction deal with land, civil, family, labor, housing and environmental matters.
How to separate the economic dispute that is pending before the arbitral tribunal? If at least one party to the dispute is an individual without the status of an entrepreneur, he is considered by a general court.
For almost 3 years, CAS has been operating. According to its rules, disputes between authorities and citizens or organizations are resolved. However, confusion arose in the separation of administrative and civil cases. How is it resolved?
Clarifications define disputes directly specified in the new Code of Procedure. Also, the Armed Forces of the Russian Federation issued a letter listing disputes involving authorities and municipalities considered civil. So, for example, a dispute related to registration for housing, in which the defendant is an authority, refers to civil jurisdiction. If the dispute concerns the cadastral valuation of the land - this is already an administrative matter.
The Supreme Court considers the criterion for separation to be the law affected by the dispute, whether it is of a property or non-property nature, or whether it affects a person’s obligations to the state.
Special and order proceedings are provided for a limited number of cases, their list is exhaustive.
The value of the court
The plaintiff, defendant and third parties are usually called participants in the process. The court in a lawsuit takes a special position: it regulates the process, helps the parties in obtaining evidence, and also makes a decision, resolving the dispute. He takes measures to reconcile the parties and fixes his result, if he is successful. For example, a court approves a settlement agreement.
At the same time, the initiative of the court is limited to an explanation of rights and an indication of the consequences of an action or inaction. A judge has the right, on his own initiative, to appoint an examination and take other measures in accordance with the instructions of the law.
The tasks of the court include directing the course of the process and taking measures to clarify all circumstances of importance.
The lawsuit begins with the adoption of a statement from an authorized person.
The start of the trial
Before the case is opened, an application is submitted to the court. In the office, especially if the documents are submitted via mail or courier, everything is accepted in a row. Materials are handed over to the judge, and he finds out how the lawsuits comply with the law. At this stage, compliance with formal criteria is assessed first.
If there are no grounds for refusing to open a case, returning the materials, leaving them without movement, then the adoption of the statement of claim for the production of the court follows. A determination is made. The document indicates the reason for initiating the case, the parties to the process, a list of their rights and the date and place of the first hearing of the case.
Once the document is completed, the case is considered open.
Compliance with the law
Code of Civil Procedure makes a number of requirements for the content and form of the claim and the documents attached to it. There are three groups of consequences of non-compliance:
- refusal to open a case;
- return of the application with the submitted materials;
- leaving the claim without motion.
Failure is possible under the following conditions:
- the claimed claim is not civil, the body or person who filed the claim has no right to do so, and the disputed actions or acts do not affect the rights and interests of the plaintiff;
- the same dispute was considered between the same parties and a court decision was made, a settlement was recognized or the plaintiff refused the claim;
- in a dispute between the same parties on the same subject, a decision was made by the arbitral tribunal.
The return of the claim is made in the following situations:
- Before filing a claim, a pre-trial or claim procedure has not been completed;
- the lawsuit must be tried by another civil court;
- application submitted by a legally incompetent person;
- the claim was not signed or the person who signed it did not provide a power of attorney;
- in another civil or arbitration court, the same lawsuit between the same parties is considered.
It is possible to leave the claim without movement. The grounds for this are considered to be the failure by the submitter of one of the requirements for execution and content, except for those that are the basis for refusing to open production and return the claim. One mistake in the statement of claim is enough, and the proceedings are suspended.
When leaving, a period is given to eliminate the deficiencies. If you comply with the requirements of the court, the claim is considered filed on the day the claim is transferred in its original form.
If the requirements are not met on time and the papers returned, the right to file a lawsuit again remains. The same applies to the return of the claim.
Production stages
The lawsuit proceedings are divided into stages:
- preliminary meeting;
- examination of the merits;
- review of the decision in absentia by the court that issued it.
Preliminary meeting
The preliminary meeting is the second part of the preparatory phase. The first is the acceptance of the statement of claim for production.
At the preliminary session, the judge explains to the parties the law, forms the subject of evidence, distributes the burden of proof (who is required to prove what facts).
The judge shall decide on the sufficiency of the evidence provided by the parties. For example, you may ask the appraiser’s report to determine the final size of the state fee, or other documents to install it by installments or reduce its size.
An application for the restoration of the deadline for filing an application with a court is being considered. Usually, the judge in the determination immediately indicates the need to provide reasons for the restoration of the term or the reasons why it cannot be considered missed.
The issue is being solved with the appointment of an examination, the collection of evidence, the calling of witnesses, and other assistance from the court, which the participants in the process need.
Some of these issues may be resolved later, but it will be necessary to justify why their necessity was not announced earlier.
Counterclaim
The defendant is given the right to send a counterclaim to the plaintiff. The rules for its adoption are the same as in the case of the initial application. Criteria to be met by a counterclaim:
- compliance with its requirements will result in the offsetting of the initial claim;
- the requirements of the counterclaim exclude the requirements of the initial application;
- both statements are interrelated and their joint consideration will make the proceedings more objective.
The law allows you to file a counter-statement before the decision of the court, but it is better to do this at the stage of the preliminary meeting, where all preparatory measures are carried out.
Interim measures
According to the procedure for action proceedings, the court has the right to apply measures to prevent the defendant from destroying or re-registering property, so that then it could not be levied. It is proposed to choose one of the methods in the Code of Civil Procedure or another option that is commensurate with the requirements of the plaintiff and does not violate the rights of the defendant.
For example, the arrest of the defendant's accounts is carried out within the required amounts.
Duration of proceedings
The law gives the court two months from the date of transfer of the material to the court to make a decision on it. Justices of the peace are given no more than a month, a similar period is set aside for resolving a dispute over the illegality of dismissal of an employee.
The Code provides for the possibility of reducing the time for action by adopting special laws. Their increase, based on the wording of the text of the Code of Civil Procedure, is excluded.
Where is the meeting
The meeting is held directly in the courthouse in one of the halls. They are not enough for all judges, so participants are invited to the offices of the judges. They are considered duly notified if there is a postal delivery notice in the file.
If the parties to the process are in different settlements or one of them is in custody, a conference call is organized. It allows not only to connect the participants in the process, but also to fix their communication.
The court, which is contacted, checks the appearance, the identities of the persons who appeared and takes receipts of responsibility for false testimonies. These provisions of the lawsuit also apply to the special procedure for the consideration of cases.
How is the meeting organized
The judge appears to name the clerk or assistant performing his duties. All actions of the court, replicas of the parties are noted in the minutes.
The rights and obligations are explained. The right is then granted to challenge the judge or the clerk.
It is checked who came to the meeting. The judge, in particular, asks for passports, originals of powers of attorney or other documents giving the right to represent the parties in the process.
The plaintiff is given the right to summarize his arguments, the defendant - objections. Evidence is being studied. The judge listens to the explanations of the plaintiff and defendant, asks questions, if necessary.
The judge’s task is to ensure a comprehensive and complete study of the circumstances of the case, to exclude those documents and materials that do not have legal significance.
One of the main principles is the direct and oral study of circumstances. What does it mean? The judge should announce the document, its contents, give an opportunity to get acquainted with it.
Orality obliges to provide discussion of documents by representatives of the parties, direct taking of testimony. So, the written testimonies of witnesses can only be accepted as a document, but they are not evaluated as testimonies.
After all the arguments of the parties have been discussed, all the materials have been studied, the judge retires to make a decision.
Postponement of meeting and absentee decision
This happens if a party or witness did not appear or documents were not received. If the plaintiff does not appear twice in a row, the lawsuit will be left without consideration. If the defendant - the case can be considered in absentia on the basis of materials provided only by the plaintiff.
Within 7 days after the decision is made in absentia, the defendant has the right to submit an application for its cancellation. If the judge agrees, the standard proceedings are resumed.
If you miss the seven-day period, the duration of the appeal period begins.
Judgment
A judge passes two types of judicial acts:
- definition;
- court decision.
The first is related to the interim actions of the court (opening of proceedings, appointment of a meeting, adjournment, appointment of expertise, etc.). He may also end the proceedings if the parties reconciled or the plaintiff did not appear in court twice in a row, or if the case was referred to an arbitrator.
The decision is made by the judge after examining all the arguments and evidence. It evaluates the collected material and resolves the requirements.
An appeal is given a month from the date the full court decision is made.
The second type of judicial acts is different in that it is adopted in the deliberation room without any participation. Violation of the secrecy of decision making is an independent reason for its cancellation.
Finally
Claim proceedings are a method of resolving property and non- property disputes . The court opens a case at the suit of a person whose interests are affected or violated. The whole procedure and all actions of the court and the parties are regulated. Some provisions of the section apply to other types of production.