How to cancel a court decision in absentia? Should I despair if all the deadlines for submitting an appeal have passed? This issue is of concern to many today, as litigation related to violations of debt obligations has become more frequent. We will try to analyze the action plan in more detail, as well as present a possible sample application for the cancellation of an absentee court decision. But first, what constitutes a similar form, how does it differ from full-time verdicts.
The concept
An absentee court decision is a special simplified procedure for making a decision in a particular case. To reach a verdict on this form, the following conditions must match:
- Mandatory consent of the plaintiff.
- The absence of the defendant, who was warned by all the rules of procedural law.
- The dispute under consideration arose from civil legal relations, that is, by a claim.
The first paragraph provides for the writing of an appeal to consider the case in the absence of the plaintiff. Such samples of applications to the court can be prepared by yourself, without experience and knowledge. There are no special writing requirements. Simply inform the court in a free form. This will mean that the applicant is not against such a form of making a decision, and the defendant’s consent, of course, is not necessary in such cases, since such a decision is made when he does not appear.
Difference from the order
An absentee decision is, in fact, the same verdict of a district court, in contrast to a court order. What are the differences between them?
A court order is the verdict of a justice of the peace. It can be easily reversed by writing an objection without explanation. In this case, the applicant will have to submit a new claim to a higher authority. She is a district court.
The cancellation of an absentee decision necessarily involves a second, “normal” review of the case in the near future in the same instance.
Difference from the in-person solution
The difference between an absentee decision and a full-time solution is:
- Procedural proceedings.
- The terms of appeal and cancellation.
- Entry into force of a lawful decision.
Procedural differences
As for the procedural consideration of the case, everything is clear here - the judge, without hearing the parties, on the basis of the written evidence of the applicant, makes a decision. For the plaintiff, as a rule, they are advantageous, since the evidence and opinions of the other party are not heard, and, therefore, do not affect the outcome of the case under consideration.
An in-person decision involves the competitiveness of the parties. Here you can challenge claims, present evidence, file petitions, call witnesses, etc.
Terms of appeal and cancellation
We will consider the procedure and sample application for the cancellation of an absentee court decision a little lower, but for now we list the differences in the terms of appeal and cancellation.
On appeal of such a verdict is allocated 7 days more than full-time. This is due to the ability to reverse the decision by presenting arguments that are weighty for this. These include:
- Good cases of failure to appear in court: illness, business trip, rest in another city, etc.
- Arguments that need to be listed for the appropriateness of such a cancellation: list the evidence and objections that may lead to a new outcome.
Myths and Reality of Entry into Force
The incorrect interpretation of laws gives rise to myths among inexperienced lawyers and legally illiterate citizens about the entry into force of an absentee court decision. According to the Code of Civil Procedure, it takes effect within a month after the expiration of the time for appeal. However, the defendant can do this within seven days from the moment he received the notification. It is the last phrase that gives rise to misconceptions among the “interpreters” of the laws, and they hope that if one does not receive a court verdict, then the decision will never enter into legal force. Such an illusion will continue exactly until the moment when the bailiffs block bank accounts and seize the property of the debtor.
In fact, 7 days are really given to cancel such a decision. From this moment, thirty days are passed before the appeal. For example, if a trial was held today, then only after 38 days the decision will enter into force.
If the defendant filed within seven days the application for the cancellation of the decision in absentia, then in case of refusal, 30 days are counted from the moment the negative verdict was canceled.
The procedure for appealing against a judgment in absentia
The most common mistake in filing a complaint is to forward it directly to the appellate court. The appeal of the decision in absentia takes place through the court where the verdict was issued.
Specific samples of appeals to the court can be found in its secretariat. We will consider only the correspondence solution.
Sample application for the annulment of a court decision in absentia
The cancellation statement looks something like this:
- In the upper right corner write the name of the court, for example, "Barabinskiy District Court of Mezhdurechensk." The procedural person (from the respondent) and personal data are indicated below.
- Below in the middle: "Application for the annulment of a court decision in absentia."
- It is further indicated that “a civil case is being filed in the court on the lawsuit ... (the data of the plaintiff and his requirements need to be entered). In my absence, the court issued“ such-and-such date ”in absentia ... (hereinafter, the operative part of the verdict must be indicated). was caused by objective circumstances, since I was on a business trip. In order to make a lawful decision, evidence will be presented in refutation of the requirements. Based on the above, I ask: To cancel the earlier decision. "
- After the statement, it is necessary to highlight the application, in which there will be evidence or circumstances that could change the original verdict. These can be certificates from medical institutions, extracts from the work book, checks, payment receipts, tickets, orders on a business trip, etc.
The above sample application for the annulment of a court decision in absentia does not contain a receipt on the payment of state duty in the application, since this procedural action is not subject to any fees. How much is this application considered? About it further.
Terms of consideration
Consideration of an application for the cancellation of a court decision in absentia takes place within ten days from the day it is registered with the office. All interested participants are notified of the place and time of the review. The procedure for all actions in a civil dispute is as follows:
- The decision in absentia is being considered.
- A statement is written about its cancellation.
- Decisions are made upon application.
- In the case of a positive verdict, a new trial is appointed. Further, it all depends on the court. It will either remain to appeal, or rejoice in the successful outcome of the case.
The main feature of the decision in absentia for the plaintiff
If someone owes you, and you decide to demand money through a court that made a decision in absentia, remember that this is not a final verdict. Its main “trick” is that at any moment the debtor may appear and cancel it. It’s hard to do anything.
One of the decisions in which the absentee decision will be “ironic” and irrevocable is to prove that the defendant deliberately evades the court summons. For example, the plaintiff himself must send a courier of the postal service, who will personally deliver a notice to the defendant under signature. If the debtor evades, then the courier can be interviewed in the presence of a notary public and documented testimony.
The Code of Civil Procedure provides that the cancellation of an absentee decision can only be in cases of a valid reason for failure to appear. The main one is ignorance of the court hearing. Secure by courier will limit this loophole; you will have to give other reasons why the defendant ignored the court. An excuse in the spirit of “sick child” will not have legal force without confirmation by the necessary certificates from a medical institution.
One thing must be remembered - it’s better to pay the debt obligations before the creditor goes to court. This will free the debtor from the obligatory payment of state duties and commission fees. The requirements for debtors are tightened every year in Russia. Today there are proposals to deprive them of their driver’s license, in addition to existing restrictions. Therefore, it is not necessary to postpone, but it is better to pay debts and not deal with the courts.
We hope we answered all the questions. Remember: the one who owns the information - owns the world.