A counterclaim in a civil proceeding is one of the defendants' defense tools. The subject to whom the requirements are presented may, in response, put forward their own. We will consider further how to file a counterclaim in court . A sample document will also be described in the article.
General information
The procedure for registration and submission of a counterclaim to the court is enshrined in Articles 137-138 of the Civil Procedure Code. The purpose of this document is to protect the defendant from the claims of the plaintiff.
The court, based on the consideration of the counterclaim, makes a decision on its acceptance or refusal to do so.
When can I apply?
The defendant has the right to file counterclaims at any stage of the process, but before the decision is made on the merits.
If the statement of claim is filed at the preparatory stage, it will be considered together with the initial requirements.
Theoretically, the defendant has the opportunity to make claims even after the judge is removed to the deliberation room. However, the likelihood that an authorized person recognizes the need to establish new circumstances is extremely small. If, nevertheless, an appropriate determination is made, the proceedings should be continued. Upon further consideration, the defendant may defend his interests on the basis of a counterclaim.
Presentation Features
The counterclaim may be submitted by the defendant or his representative. In the latter case, the subject must have a document confirming the authority. It is a power of attorney.
It can prescribe the specific powers of the person. A copy of the power of attorney must be attached to the statement of claim. If a representative participates in the proceedings from the very beginning, then the document is present in the case file from the first stage. Accordingly, there is no need to re-attach it to the claim.
Nuances
When filing counterclaims, the rules on jurisdiction do not apply. The defendant must file a claim with the court in which the original claim is being considered. The relevant provision follows from the content of paragraph 2 of paragraph 31 of the Code of Civil Procedure.
According to general rules, filing counterclaims in an appeal or cassation instance is not possible. Such a ban is enshrined in paragraph 6 of clause 327 of the article of the Code of Civil Procedure. However, if the appeals body proceeds to the dispute in the manner established for the first instance, the provisions of this norm shall not apply. The corresponding provision is enshrined in paragraph 22 of the Resolution of the Plenum of the Armed Forces No. 13 of 2012
Acceptance Terms
They are given in article 138 of the Code of Civil Procedure. A counterclaim may be accepted if:
- Claims of the defendant and the plaintiff can be satisfied by offsetting.
- The initial and counterclaim are interconnected, and their joint consideration will expedite the hearing of the dispute.
- Satisfying the requirements of the defendant precludes a decision in favor of the plaintiff.
Failure Features
If the above conditions are not met, the court has the right not to accept the application, which makes a determination. Moreover, such a refusal, in accordance with the provisions of the Resolution of the Plenum of the Armed Forces No. 13 of 2008, is not subject to appeal.
The defendant in such cases is entitled to present his claims as part of an independent statement. Such a claim will be considered in a separate process.
The reference in the appeal to the rejection by the first instance of the counterclaim is not the basis for the cancellation of the decision.
Limitations
As established in Art. 244.14 of the Civil Procedure Code, lawsuits and applications for combining claims in cases related to the return of a minor and the exercise of the right of access to a child are not subject to consideration.
However, there are exceptions to this rule. Applications for combining claims on:
- The return of 2 or more children illegally displaced or illegally detained in the Russian Federation.
- Exercise of access rights for two or more minors on the basis of an international agreement to which Russia is a party.
State duty
Upon presentation of counterclaims to a federal or magistrate court, the defendant must pay a fee. Its size is determined in accordance with article 333.19 of the Tax Code.
Sample counterclaim
Claims are filed according to the general rules enshrined in the Code of Civil Procedure. In a counter statement, the defendant must indicate:
- The name of the authority to which the claims are filed.
- F. I. O. parties, contact details.
- Cost of claim.
- Case number.
- The essence of the plaintiff's claims. The applicant’s claims should be briefly described here.
- The content of the counterclaims, the grounds for their presentation.
- The list of attached documents.
- Date of compilation.
The claim is signed by the defendant or his representative (if he has the appropriate authority).
Design Nuances
Counterclaims must be justified and documented. In the text of the claim, it is advisable to refer to specific rules of law that govern relations between the parties, or which were violated by the plaintiff in the opinion of the defendant.
Requirements should be stated clearly, avoiding ambiguous interpretations.
Counterclaim to arbitration court
The procedure for its presentation is regulated by the provisions of article 132 of the agro-industrial complex. It is similar to the scheme provided for in the Code of Civil Procedure.
The general rules for filing a claim are enshrined in the norms of 125-130 agribusiness. You can file an application before the decision on the merits. A claim is sent to the authority considering the initial requirements.
When filing a counterclaim within the framework of the arbitration proceedings, the defendant also needs to pay a fee. If the court accepts the requirements for consideration, the dispute will start again.
Is it possible to pick up a lawsuit?
Can. Legislation allows for the recall of a counterclaim before a decision is made on it.
The need to pick up a lawsuit can be due to various reasons. The most common is the conclusion of a settlement agreement.
The court makes a decision on the acceptance of the claim for production. Up to this point, you can pick up the application without much difficulty. The claim can be withdrawn orally or in writing. In the latter case, the relevant application is submitted to the court registry.
The statement of withdrawal should indicate the required details (the same as in the lawsuit itself). The reasons for rejecting the requirements are optional.
If the counter-statement has already been accepted for consideration, you can withdraw it directly during the meeting. Some defendants preliminary prepare a written application and submit it to the judge. You can withdraw a lawsuit and verbally. In this case, the application shall be recorded by the secretary in the minutes of the hearing.
Consequences of failure
It should be borne in mind that in the event of withdrawal of claims, it will be impossible to appeal to the court again with them in respect of the same subject. After making a decision on the satisfaction of the petition, the proceedings on the claim are completed.
The court must explain to the applicant the consequences of the denial of claims.
Set-off Rules
The dispute between the parties may result in a settlement agreement. In this case, offsetting the claims of the defendant and the plaintiff is allowed. To do this, a number of conditions must be met:
- Requirements should be uniform in content. For example, the plaintiff and defendant make only monetary claims.
- The size of the counterclaim cannot be greater than the initial claim.
Clause 411 of the Civil Code prohibits set-off if the statute of limitations for claims or claims has expired or is directly related to the person of the party. In the latter case, it is, in particular, about:
- Compensation for damage to health / life.
- Recovery of alimony or lifelong maintenance.
It must be understood that the set-off requirement and counterclaim are different concepts. In the latter case, the court shall satisfy the claim of either the plaintiff or the defendant. The set-off requirement is made out in the response to the initial claim.