The requirement to protect a violated or challenged right or interest protected by law is called lawsuit . A claim is a legal means by which the court’s activities are initiated to protect a violated or challenged right and an interest protected by law. The procedural order within which this activity of the arbitration court takes place is called claim proceedings.
The cause of action is the data from which the plaintiff derives his claims. Claims arise from subjective civil rights. Thus, an owner who files a claim to restore lost possession of his property refers to his right of ownership.
Thus, the basis of the claim should be understood as the circumstances indicated by the plaintiff, with which, as legal facts, he connects his substantive legal claim against the defendant, or the legal relationship as a whole, constituting the subject of the claim.
Some sources also point to the third element of the claim - content.
The content of the claim is the type of relief sought by the plaintiff. To protect a violated or disputed right, the arbitration court may sentence the defendant to commit a certain action or abstain from it; recognize the existence of a legal relationship between the plaintiff and the defendant, fixing the rights and obligations of the parties; change or terminate existing legal relations between the parties. The content of the claim reflects the plaintiff’s demands to the court and is reflected in the pleading clause of the statement of claim.
Depending on the procedural purpose and the nature of the controversial substantive legal claim that the plaintiff presents to the defendant, claims can be divided into types: claims for award and claims for recognition .
In cases where the claim of the plaintiff against the defendant is aimed at awarding the defendant to perform in favor of the plaintiff a certain obligation arising from a controversial legal relationship, we are talking about a claim for award. In a claim for award the subject of the claim will be the plaintiff’s substantive legal requirement for the defendant to perform any action in favor of the plaintiff or to refrain from committing any action that violates the rights or legally protected interests of the plaintiff. The basis of the claim for an award consists of legal facts indicating the emergence of a right, and facts indicating that this right has been violated.
In a claim for recognition, the plaintiff asks to recognize his disputed right, to confirm the presence or absence of a disputed legal relationship. The subject of the claim for recognition will be the plaintiff’s demand to the defendant to recognize the presence or absence of a disputed right. The basis of the claim for recognition is the legal facts with which the plaintiff connects his claim against the defendant.
What happens if there are multiple claims?
The combination of several claims by the plaintiff in one statement of claim allows the dispute to be resolved more quickly and correctly, with less effort and resources, prevents the possibility of making conflicting decisions on related claims, and reduces legal costs in the case.
In accordance with Part 1 of Art. 105 of the Arbitration Procedure Code of the Russian Federation, the plaintiff has the right, but is not obliged, to combine several demands in one statement of claim. The combination of several claims in one statement of claim is possible if they are related. For example, the demand for recognition of the right of ownership of property and the demand for the transfer of this property to the plaintiff are interconnected and can be combined by it in one statement of claim, since the satisfaction of the second requirement depends on the fate of the demand for recognition of the right of ownership of the property. Requirements are interconnected even if they arise from the same basis.
The question of whether several claims connected by the plaintiff in one statement of claim are related is decided in each specific case by the plaintiff himself and the arbitration court when accepting the statement of claim.
In Art. 105 of the Arbitration Procedure Code of the Russian Federation formulates the grounds that give the arbitration court the right to combine several cases into one proceeding or to separate one or more combined claims into separate proceedings.
The arbitration court has the right to combine several cases into one proceeding if:
- they involve the same persons (plaintiff, defendant, third parties, etc.);
- they are homogeneous, that is, they belong to the same category of cases.
For example, an arbitration court has the right to combine into one proceeding several cases on the claim of the same enterprise against one transport organization for the recovery of sums of money for the loss of cargo, or several cases on the claim of one enterprise against another for the recovery of sums of money for delivered consignments of goods.
The law does not provide any special conditions for separating one or more connected claims into separate proceedings. This issue is decided on a case-by-case basis at the discretion of the court. Thus, a judge can separate one or more combined claims into separate proceedings if, when accepting the claim, he did not pay attention to the fact that several unrelated claims were combined in one statement of claim or the claims were filed against different organizations. The rule on separating independent claims into separate proceedings can be applied by the court even if, during the proceedings of the dispute, the court comes to the conclusion that the joint consideration in one case of several claims declared by the plaintiff (even homogeneous ones) can significantly complicate the resolution of the dispute and will lead to its prolongation proceedings.
Consolidation of cases and separation of claims into separate proceedings can take place either at the request of the persons participating in the case or at the initiative of the court. The court must issue a reasoned ruling on the performance of these procedural actions. It is not subject to appeal separately from the decision, since it does not interfere with the progress of the case.
How is a claim secured?
When filing a claim, the plaintiff strives to ensure that his claim against the defendant by the decision of the arbitration court is satisfied and fulfilled. If there are concerns that it will be difficult or impossible to execute the decision, then there is a need to take measures aimed at ensuring the execution of the decision that the arbitration court must make in the future. The adoption by the arbitration court of the measures provided for by the Arbitration Procedure Code of the Russian Federation, guaranteeing the possibility of execution of the decision, is called securing the claim. If necessary, a claim can be partially secured, for example, when it consists of several demands and not the entire claim needs security, but only its individual demands.
Security for a claim is allowed for both the initial and counterclaim.
Securing a claim is possible from the moment the case is accepted for proceedings and at any other stage of the arbitration process. Since issues of securing a claim must be resolved promptly. The Arbitration Procedure Code of the Russian Federation established that an application for this is considered no later than the next day after its receipt. The persons participating in the case are not notified of the consideration of the application for securing the claim.
Based on the results of consideration of the application, the arbitration court issues a ruling indicating a specific measure to secure the claim.
If the request to secure the claim is refused, then if the circumstances change, the persons participating in the case have the right to again apply for security to the claim.
The arbitration court's ruling on securing a claim may be appealed, as well as rulings refusing to secure a claim. The execution of the arbitration court's ruling on securing a claim is not suspended by filing a complaint. In this case, the consideration of the case continues, and the ruling on securing the claim is executed on a general basis.
Measures to secure a claim may be:
- seizure of property or funds belonging to the defendant;
- prohibiting the defendant from performing certain actions;
- prohibiting other persons from performing certain actions related to the subject of the dispute;
- suspension of collection under a writ of execution or other document contested by the plaintiff, according to which collection is carried out in an indisputable (non-acceptance) manner;
- suspension of the sale of property in the event of a claim to release it from seizure.
If necessary, several measures may be taken to secure the claim.
At the request of the persons participating in the case, the arbitration court may replace one type of security for the claim with another. When replacing the type of security for a claim, you should use only those measures to secure the claim that are listed in Art. 76 Arbitration Procedure Code of the Russian Federation.
The replacement of one type of security for a claim with another is carried out, in particular, in cases where a previously established measure does not ensure the rights of the plaintiff and cannot guarantee the execution of the decision, or when this measure unjustifiably infringes on the rights of the defendant. A ruling is made on the replacement of one type of security for a claim with another, which can be appealed.
The Arbitration Procedure Code of the Russian Federation has provided for the possibility of depositing the amount claimed by the plaintiff into the deposit account of the arbitration court instead of taking established measures to secure the claim. This possibility of replacement can only occur in claims for the recovery of funds. The payment of the appropriate amount, instead of taking measures to secure the claim, is made directly by the defendant. The arbitration court has no right to oblige him to pay such an amount. If this amount is deposited by the defendant into the deposit account of the arbitration court, then the previously taken measure to secure the claim is subject to cancellation.
The ruling on securing the claim is enforced immediately in the manner established for the execution of decisions of the arbitration court.
The arbitration court considering the case cancels the security of the claim at the request of an interested person participating in the case, in particular, in cases where the grounds on which such measures were taken no longer exist.
Suspension of proceedings in the cases specified in Art. 81 and 82 of the Arbitration Procedure Code of the Russian Federation, does not entail the mandatory cancellation of the security for the claim. The security for the claim may be preserved. When deciding whether to maintain measures to secure a claim, the arbitration court must take into account, in particular, that the period during which the proceedings will be suspended may be long, and this will limit the rights of the defendant for a long and indefinite period.
The issue of canceling the security for a claim is considered at a meeting of the arbitration court, the failure of persons participating in the case to appear at which does not prevent the meeting from being held. The ruling to cancel the security for a claim is subject to appeal on a general basis.
The Arbitration Procedure Code of the Russian Federation established that although, in case of refusal of a claim, the accepted security measures are preserved until the decision enters into legal force, the arbitration court has the right, simultaneously with the decision to refuse the claim or after its adoption, to issue a ruling on the cancellation of the security for the claim. Such a determination may be appealed. Issues regarding the cancellation of security for a claim upon termination of proceedings and leaving the claim without consideration are resolved in a similar manner.
When a decision to reject a claim, a ruling to terminate proceedings and leave a claim without consideration enters into legal force, measures to secure the claim are canceled if they were not canceled earlier.
Taking measures to secure a claim may limit the rights of the defendant and cause him losses. If the defendant's losses are caused by the fact of securing the claim, he has the right to demand compensation from the plaintiff. According to Art. 80 of the Arbitration Procedure Code of the Russian Federation, such a right arises for the defendant after the decision enters into legal force, when the claim is rejected by this decision. If the claim is partially rejected, the defendant has the right to recover from the plaintiff the losses caused to him by securing only that part of the claim that the plaintiff was denied by the decision of the arbitration court. The issues of compensation for losses of the defendant in case of termination of the proceedings and leaving the claim without consideration are resolved in a similar way.
To consider the issue of compensating the defendant for losses caused to him by securing the claim, a new case is initiated based on the defendant’s statement of claim. This claim is being considered by the same arbitration court that resolved the case.
Going to court often becomes the last opportunity to protect violated rights or interests. Naturally, the plaintiff expects that the disputed issue will be resolved in his favor.
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One of the main conditions for the court to make a decision is a correctly drawn up statement of claim. Attention should be paid to the content of each of the main parts of the claim.
Basic Concepts
A statement of claim is a document sent by the plaintiff to the court.
In most cases, it is not enough to simply state a demand; you also need to convincingly substantiate it, supporting your arguments, if possible, with appropriate evidence.
The plaintiff must prove the correctness of his position. The defendant in a lawsuit has equal rights with the plaintiff, and he can protect his own interests and rights to the fullest extent.
When considering a case, the principle of adversarial behavior of the parties applies. But before the start of the proceedings, it is necessary for the court to begin proceedings in the case, and this is possible only after the plaintiff submits a correctly drawn up statement of claim.
Each claim is a solution to an individual issue. In this regard, it is impossible to reduce it to a strict form. This must be taken into account when preparing your application.
If you cannot independently take into account all the individual characteristics of the dispute or have doubts, you should seek the help of professional lawyers.
What law governs
When considering a dispute in courts of general jurisdiction, you must draw up a claim based on the Civil Procedure Code, and when applying to an arbitration court - on the Arbitration Procedure Code.
Despite the general similarity of claims, sometimes there are small but significant differences.
Some types of claims, for example, are somewhat different from others and when drafting them, you need to take into account the relevant provisions of federal legislation, for example, the Civil Code of the Russian Federation.
A claim drawn up without taking into account the rules given in legislative acts may be returned to the plaintiff or left without consideration until the inaccuracies or violations are eliminated.
General procedure for filing an application with the court
The completed application must be sent by the plaintiff to the court, taking into account the rules of jurisdiction and jurisdiction.
Submission of documents can be carried out personally by the plaintiff or his representative through the office or assistant judge.
If the court is located far from the plaintiff, then in this case you can send documents by mail. In some situations, the judge may personally accept the application.
An application is usually sent to the court at the place of residence (location) of the defendant. For certain categories of claims, exclusive jurisdiction is established.
This applies, for example, to cases related to real estate. Such cases can only be heard by a certain court.
In many cases, the plaintiff and defendant have the opportunity to agree in advance to have the dispute heard in a specific court.
This is only possible for cases that have exclusive jurisdiction. The parties retain the possibility of establishing contractual jurisdiction until the start of the proceedings.
Having received the documents within 5 days, the court must verify that the application is being submitted to the appropriate court and meets all the requirements of current legislation.
After this, a court ruling is made to accept the claim and proceedings begin.
If the court discovers that an identical claim has already been decided by this or another court, the application will be refused. A corresponding determination is also made regarding this.
Having discovered minor inaccuracies or errors, the court may give the plaintiff time to correct them.
In this case, the claim is left without movement for some time, and after correction it is accepted by the court.
If the errors are serious enough, for example, the jurisdiction was incorrectly determined or the state duty was incorrectly calculated, then the court returns the claim to the applicant with appropriate motivation.
If the claim is returned, the applicant has the opportunity to file a new one, taking into account the comments made during its preparation.
Video: how to sue
Components of the claim
Attention must be paid to each part of the statement of claim, because their content affects whether the claim will be accepted for consideration, as well as the further decision of the court.
We provide in the table information about the main components of the claim:
When considering a case in court, the plaintiff may become aware of new facts and circumstances. In this case, he always has the opportunity to change the basis or subject of the claim.
Changes can be made before the court makes a decision. Moreover, it is impossible to simultaneously change the subject and grounds of the claim. An increase or decrease in claims does not constitute a change in the claim.
Introductory stage
The introductory part, which is often called the header, must contain the name of the court where the application will be sent, details of all participants in the case - plaintiff, defendant, third parties.
If a legal entity is involved in the case, then it is necessary to indicate its name, registration address, as well as OGRN and TIN. This allows you to uniquely identify the participant in the case. For individuals, it is enough to indicate your full name and registration address.
If the claim is of a property nature, then the plaintiff must calculate its value and indicate it in the heading.
Also, in the water part, you should indicate the amount of the state duty paid, regardless of the nature of the claim, if it is provided for by the current Tax Code of the Russian Federation.
The introductory part of the claim also includes the name of the statement, for example, “Statement of Claim for repayment of debt under a loan agreement.”
Motivational (descriptive)
The bulk of the statement of claim is the motivation (descriptive part).
In it, the plaintiff must set out in sufficient detail in a logical sequence what facts and circumstances led to the violation of his interests and the emergence of claims against the defendant.
When compiling this part, unnecessary emotions should be avoided; only points that are significant for the proceedings should be indicated.
Comment. If the claim is aimed at collecting, then some emotions in it are quite acceptable, but you should not overdo it with them.
It is advisable to confirm all points indicated in the descriptive part with documents, testimony of witnesses, audio, photos and video materials, etc.
It would be useful to indicate the legal norms on which the plaintiff bases his claims against the defendant.
Comment. According to most experts, indicating references to specific provisions of the law in the application is not a mandatory condition.
However, their presence makes it possible to simplify the process of making a court decision and clearly determine on what the applicant’s position is based.
What should be in the petition
The pleading part consists of an appeal to the court with a request to satisfy the specific demands of the plaintiff.
They must be clearly and unambiguously formulated. There is no need to provide additional references or reasons here, but rather they should be stated in the narrative portion of the application. When making requests, you must proceed from the subject of the claim.
In some cases, additional requests to the court should be indicated in the petition part, for example:
Separately, in the pleading part, it is worth turning to the court with a request to recover legal costs and compensation for moral damage from the defendant in favor of the plaintiff. These amounts should not be taken into account when calculating the cost of the claim.
Document attachment
The claim must be accompanied by all documents confirming the facts and circumstances described in the reasons. A sample statement of claim for the protection of part and dignity can be downloaded.
Date of writing: 2013-08-19
Before proceeding with the procedure for drawing up a claim, it is necessary for a general understanding to determine the terminology of the issue.
When referring to explanatory dictionaries, we receive the following explanations:
ISK - A request to the court to recover from someone money or property to which the person submitting this request claims his rights. (Ushakov’s Explanatory Dictionary. D.N. Ushakov. 1935-1940);
ISK - Remedy of judicial protection of civil law. (Large explanatory dictionary of the Russian language. - 1st ed.: St. Petersburg: Norint. S. A. Kuznetsov. 1998).
As can be seen from the above, a claim is, on the one hand, a remedy, and on the other, a demand (request).
In fairness, it should be said that this is the so-called unofficial interpretation. Of course, when you come across any new term, for a comprehensive analysis, you should rely not only on explanatory dictionaries. To understand the legal meaning of a term, it is best to have in front of you its official interpretation (definition). The official interpretation is the interpretation of the competent authorities authorized to do so by the state. Ultimately, when an incident arises, one should focus on the official interpretation.
The concept of a claim (statement of claim) is not legally established as a definition anywhere; it only follows from the content of Article 131 of the Civil Procedure Code of the Russian Federation (hereinafter referred to as the Civil Procedure Code of the Russian Federation) and Article 125 of the Arbitration Procedure Code of the Russian Federation (hereinafter referred to as the Arbitration Procedure Code of the Russian Federation). After a careful reading of the above rules, we can draw an initial conclusion: a claim is a claim arising from a right belonging to the plaintiff by virtue of a contract or on other grounds provided for by law. In other words, this is a strictly formalized means of protecting a violated or disputed right.
The key word in understanding the nature of the claim is demand, that is, a form of appeal to the court with a certain demand in connection with a violated or disputed right.
Usually, when drawing up a statement of claim, they adhere not only to the normative rules prescribed by law, but also to the prevailing non-formalized recommendations developed by practice.
The classic structure of a standard claim consists of the following parts:
- Water
- Descriptive
- Motivational
- Petitionary
- Application
Let us consider all the components in order in more detail.
Usually the document's "header" is indicated in the upper right corner. This is, as a rule, official information, including “details” of the controversial case.
So according to Art. 125 of the Arbitration Procedure Code of the Russian Federation, the introductory section will reflect:
- name of the arbitration court to which the claim is filed;
- name of the plaintiff, his location; if the plaintiff is a citizen, his place of residence, date and place of birth, place of his work or date and place of his state registration as an individual entrepreneur, telephone numbers, faxes, email addresses of the plaintiff;
- name of the defendant, his location or place of residence;
- the price of the claim, if the claim is subject to assessment.
According to 131 Code of Civil Procedure of the Russian Federation, the list will be slightly different:
- name of the court to which the application is filed;
- the name of the plaintiff, his place of residence or, if the plaintiff is an organization, its location, as well as the name of the representative and his address, if the application is submitted by a representative;
- the name of the defendant, his place of residence or, if the defendant is an organization, its location;
- the price of the claim, if it is subject to assessment.
If a claim is brought against several defendants or third parties are involved in the consideration of the case, then the relevant information is provided in relation to all defendants and third parties.
Descriptive.
The descriptive part, as a rule, briefly describes the current situation that led to the legal dispute, i.e. facts related to the issue under consideration are stated (for example, “Consignments of goods, according to the contract, were delivered to the defendant in full... All consignments of goods delivered were accepted by the Defendant... However, to date, the defendant has not fulfilled its obligation to pay for the Goods. .."
These circumstances must be confirmed by any evidence (agreement, invoices, payment orders, receipts, witness statements, etc.). It should be noted that in domestic practice, all de jure evidence is equal to each other, but de facto the court, as a rule, gives preference to written evidence. This should always be kept in mind when predicting litigation.
Motivational.
After presenting the facts, as a rule, they indicate the rules of law applicable to the given case, i.e. in accordance with such and such an article there should be...
(for example, following the logic of the above
"in accordance with Article 309 of the Civil Code of the Russian Federation
"Obligations must be fulfilled properly in accordance with the terms of the obligation and the requirements of the law, other legal acts, and in the absence of such conditions and requirements - in accordance with business customs or other usually imposed requirements"
in accordance with paragraph 1 of Art. 486 Civil Code of the Russian Federation
“The buyer is obliged to pay for the goods immediately before or after the seller transfers the goods to him, unless otherwise provided by this Code, another law, other legal acts or the purchase and sale agreement and does not follow from the essence of the obligation.”
But the defendant does not properly fulfill his obligations, therefore, the plaintiff, in accordance with paragraph 3 of Art. 486 of the Civil Code of the Russian Federation, has the right to demand payment for goods and payment of interest in accordance with Article 395 of the Civil Code of the Russian Federation"
As can be seen from the above, the plaintiff indicates the rule of law that, in accordance with it, he has the right to something. The plaintiff also cites a rule of law that indicates how the situation should be resolved if the plaintiff’s right is violated.
Often the descriptive and motivational parts of the statement of claim are swapped or even combined with each other. In fact, this is not of fundamental importance; there are no strict rules for drawing up a statement of claim, what should be followed and in what order. State the parts of the statement of claim in the order that is most convenient for you, the main thing is that it must contain circumstances relevant to the case under consideration and an indication of what the violation or threat of violation of the rights, freedoms or legally protected interests of the plaintiff is.
So according to Art. 125 of the Arbitration Procedure Code of the Russian Federation in the descriptive part will reflect:
- the circumstances on which the claims are based and evidence confirming these circumstances;
- information about the plaintiff’s compliance with the claim or other pre-trial procedure, if it is provided for by federal law or agreement;
- references to laws and/or other regulatory legal acts substantiating the plaintiff’s claims
According to 131 Code of Civil Procedure of the Russian Federation it will be reflected:
- what is the violation or threat of violation of the rights, freedoms or legitimate interests of the plaintiff and his demands;
- the circumstances on which the plaintiff bases his claims and evidence supporting these circumstances;
- information about compliance with the pre-trial procedure for contacting the defendant, if this is established by federal law or provided for by the agreement of the parties;
In my opinion, this is the most important part of the statement of claim. It is on the basis of the plaintiff’s requirements that your case will be considered, strictly within the framework of the pleading part of the claim. The fact is that the court cannot change your requirements on its own initiative. Moreover, if your claim is satisfied, the operative part of the court decision will “copy” your Petitionary part of the statement of claim. And then this will be reflected “automatically” in the writ of execution. That is why it is so important to correctly formulate your requirements in this part. In my practice, there have been cases when one incorrect word in the pleading part of the claim, and then along the chain in the operative part of the court decision and further in the writ of execution, ultimately made enforcement proceedings very difficult. Remember that bailiffs also cannot freely interpret judicial acts; they, like judges, act within strictly defined legal frameworks.
Application.
After the pleading part there is an Appendix, which indicates a list of documents attached to the claim. Everything here is quite transparent, firstly, attach copies of the documents to which you referred in the statement of claim (agreements, letters, primary documentation, etc.), these are documents that confirm the validity of your claims, secondly, attach a document confirming payment state duty (for some categories of cases state duty is not paid). More details about the amount and procedure for paying state fees for different categories of cases can be found in Chapter 25.3 of the Tax Code of the Russian Federation. Thirdly, if the claim is subject to assessment, it is necessary to attach a calculation of the collected or disputed funds.
Moreover, depending on the category of the case, i.e. it will be considered by an arbitration court or a court of general jurisdiction, the plaintiff has an obligation to notify the defendant of the claim (for arbitration), in this case we attach postal receipts or other documents confirming the sending of the claim with attachments to the defendant. For a court of general jurisdiction, we prepare another set of documents (copies of the claim with attachments), and the court itself sends this set to the defendant.
To summarize the above, the procedure for drawing up a statement of claim is still complex. These are the requirements of procedural codes and recommendations established by practice. Present the statement of claim as briefly as possible, the style should be close to business, no emotions, only to the point. The judge will probably not read the long text to the end, most likely he will immediately move on to the pleading part. The ideal volume is no more than 2 or 3 sheets. If you don’t fit in, it makes sense to include part of the text (for example, calculations or a list of primary documents) in a separate appendix to the claim. This will be more clear, the main thing is not to violate the requirements set out in Art. 125 of the Arbitration Procedure Code of the Russian Federation for arbitration and Article 131 of the Code of Civil Procedure of the Russian Federation for courts of general jurisdiction. Write in such a way that the meaning of the claim is clear even to a person far from jurisprudence. Readability and a clear statement of your claims are the main guidelines of your statement of claim. You must clearly understand what you want to get by filing this lawsuit in court. Only in this way, having a clear idea of the upcoming dispute, can you defend your case in court.