Interim measures in the civil process guarantee the execution of a court decision in the future. The law provides a list of measures and the procedure for their application.
What the law says
The purpose of filing a claim in property disputes is, first of all, the recovery of funds. The defendant, who does not want to pay, is trying with all his might to make sure that his property is removed from the attack.
Interim measures in the civil process - ways to limit the defendant's ability to get rid of property or reissue it to third parties.
The significance of the institution of securing the claim in the guarantees of the execution of the court decision in the future if the plaintiff wins the case. After all, the goal of legal proceedings is to fully restore the rights and interests of citizens and organizations.
Who applies at what stage of the process
Interim measures in a civil process are allowed to be applied at any stage, from the moment a lawsuit is filed to the last court hearing. The application is submitted solely as part of the process; this cannot be done in advance. The earliest stage is the simultaneous filing of an application with the lawsuit. Some lawyers write a request for the application of these measures directly in the lawsuit. This slightly reduces the amount of work.
However, the law provides for one exception, it will be described below.
The issue is decided by the court at the request of the plaintiff or other party to the case, taking part in the case as a third party (prosecutor, guardianship authority).
What are the actions of the judge
As soon as the application appears in court, a decision is made on it. Neither parties nor other persons whose interests may be affected by interim measures in the civil process are allowed to not be called up under the Code of Civil Procedure. The judge makes a decision without their participation, based on the arguments provided by the applicant.
One or more security measures are applied depending on the situation. The judge has the right to agree to apply only one or part of the measures proposed.
Arsenal of Impact
Art. 140 Code of Civil Procedure of the Russian Federation gives an approximate list of what the plaintiff or other participant in the process has the right to ask:
- seizure of disputed property;
- the prohibition to perform certain actions on the defendant;
- the prohibition to perform certain actions to unauthorized persons who have property;
- an obligation to perform certain actions in a case where the subject of the dispute is exclusive rights to film and television films and other works;
- suspension of enforcement proceedings.
Application options
The seizure of property means a ban on actions aimed at terminating the debtor's ownership right. A mark is entered in the registers, after which the conclusion of transactions is no longer technically possible.
The prohibition to perform certain actions may be associated with a change in the subject of the dispute, for example, the suspension of reconstruction or conversion of a house.
The prohibition of the actions of third parties is similar, but it is more specific. Art. 140 Code of Civil Procedure of the Russian Federation gives the court the right to prohibit the transfer of property to the defendant, other persons, the fulfillment of obligations related to this property.
In a dispute affecting exclusive rights, the prohibition concerns restrictions on the demonstration of content, its distribution or copying for the purpose of further distribution. Very controversial method, because its implementation is limited due to the technical features of the Internet.
The suspension of enforcement proceedings is in demand especially at the stage of preparing property for sale at auction.
The court ruling provides specific instructions on the prohibition of which particular actions are prohibited or vice versa, which actions are mandatory.
The lack of specificity in the court decision makes interim measures in the civil process either senseless or unduly infringes on the rights of the defendant or another person.
Who executes the court ruling
A court ruling is sent to the Rosreestr and other bodies involved in maintaining registers of property rights . Marks are entered in the registers, after which the transaction becomes technically impossible. Without registration, they are not considered prisoners.
The court ruling is sent to the bank, which independently blocks accounts according to the court ruling. In the two situations described, it is shown how the seizure of property works.
In other cases, the document is transferred to the bailiff, who is obliged to continue to act in the framework of enforcement proceedings.
If we are talking about banks or credit organizations, the document is transmitted directly by the applicants, so the execution procedure is accelerated.
The sooner the judge decides on interim measures, the easier it will be to achieve the goal of their application. So at the stage of filing a claim, the defendant does not yet know either the application or the size of the claims, and measures to ensure the claim are most effective.
For banks and other financial organizations, a certified copy of the court ruling is sufficient. In other cases, a writ of execution is issued, after which the corresponding enforcement proceedings begin.
The law does not list all types of interim measures in the civil process and only outlines their circle. This approach makes sense, because in the code there is no way to list all forms of encumbrances accepted by the courts. The lack of an exhaustive list is thus rather a positive thing.
What are the conditions of use
The applicant provides arguments confirming that the absence of an arrest or other restrictions will render the court decision unhelpful.
According to the Code of Civil Procedure of the Russian Federation, interim measures in a civil proceeding must be proportionate.
For example, the amounts in the accounts are seized in an amount that covers the claims of the claim. If the amount of seized funds in the accounts exceeds a reasonable amount, such actions are quite simply appealed to a higher authority.
How to protect your rights to the defendant
GIC gives two ways to protect their rights:
- ask the court to replace one measure to secure a claim with another;
- to ask a higher court to reverse the determination of interim measures.
Replacement procedure
The defendant has the right to offer his own version of the restrictions imposed by the court. The application is submitted to the judge considering the case and is considered without the participation of the parties. This is if it is served out of the meeting. If the petition is filed at the hearing, the judge shall decide on it immediately.
Measures to secure a claim are easier to replace in a case where it is a purely monetary dispute without recognizing rights to real estate or other property.
The law gives the right to deposit an amount equal to the requirements of the plaintiff on court deposits. The court's refusal in the case of monetary claims is not provided. Such a move ensures the implementation of the court decision if it is accepted in favor of the plaintiff, and the defendant gets the opportunity to dispose of his property without obstacles.
Court deposit - a special account of the judicial department, which transfers funds that are blocked until the end of the dispute.
Complaint about the measures taken
Disagreement with the court gives the right to a private complaint, according to the law it is given 15 days. She is served in a higher court. Complaints against justices of the peace are filed with district courts, and with district judges of federal significance, regional, provincial, and republican courts.
The absence from the meeting, provided that no one was informed about it, gives the right to count the deadline for the complaint from the day that interim measures became known.
If a complaint is filed to cancel or replace interim measures, the execution of the court ruling is suspended. If the application of security measures is appealed, then the execution of the complaint does not suspend their execution.
Securing a lawsuit before court
The law gives such a right to a citizen or organization with copyright and related rights. Preliminary interim measures in civil proceedings are not taken in relation to photographs.
The consideration of applications lies in the plane of the work of the Moscow City Court.
The presence of copyright and the fact of their violation by unauthorized persons through the use of telecommunication networks or the Internet is necessarily proved.
The court’s refusal to take interim measures does not prohibit the applicant from making the same request again, and also to file a lawsuit combined with an application for interim measures.
The ruling of the court that adopted the restrictive measures is sent to the media supervision service, Roskomnadzor and other persons whose interests may be affected by the actions of the court.
The adoption of interim measures in the civil process in this case obliges the applicant to file a claim. He is served in the Moscow City Court.
The refusal to file a lawsuit in the allotted time or missing the deadline obliges the court to cancel the previously adopted determination without the will of the applicant or potential plaintiff.
The right is given to persons affected by interim measures to demand damages from the applicant if they are canceled by the court, or the lawsuit was filed, but the court did not agree with him and ruled in favor of the defendant.
Drafting a statement
A request to the court for interim measures may form part of the statement of claim and is listed in the list of requests to the court. An explanation of why the court must agree with them is set forth directly in the text of the lawsuit.
If the application is submitted as a separate document, it looks something like this:
- the name of the court, the number of the justice of the peace;
- Full name of the plaintiff, defendant, where they live, phone numbers or other means of communication;
- the reasons that made the plaintiff appeal with such a statement;
- a request or several requests (seize a bank account, a ban on registration actions, transactions and other actions);
- application in the form of copies of available documents;
- date, signature of the applicant.
This is an example template, each application has its own characteristics, taking into account the nuances of the case.
Grounds for cancellation
The court decision to refuse the lawsuit and other cases of termination of the proceedings lead to the removal of interim measures in the civil process.
However, the adoption of these decisions does not entail the automatic lifting of all restrictions.
A copy of the court decision with a note on its entry into force must be submitted to the registration authorities. Otherwise, the Rosreestr or another organization will continue to believe that the arrest or other restrictions are still valid. This is also the case with bailiffs and banks.
The procedure makes you spend a lot of time to the person concerned, and it is not worth putting it off.
How interim measures are removed in the civil process, the Code of Civil Procedure of the Russian Federation does not describe in detail, only indicates the direction of action. The withdrawal process in each organization has its own nuances, citizens have to write statements with the attached documents.