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How to submit the statement of claim

One of the problems with which the citizen, the legal person and even the lawyer quite often faces, is a submission of the statement of claim in court. Quite often the judge try to refuse of taken the claimant, finding the base for refusal in reception of the statement of claim, or its return. And even such bases which are not stipulated by the law. It is necessary to know, that the list of the bases for refusal by court in acceptance of the statement of claim is exhaustive. It means, that the judge can not refuse in reception of the statement of claim or return it except the case of stipulated by article 134 of the Civil Procedural Code which establishes the following bases for refusal in acceptance of the statement of claim: The judge will refuse to accept a statement of an action, if: 1) the application is not subject to consideration by way of civil legal proceedings because the given kind of application shall be considered and resolved in a different court procedure; the application is lodged in protection of the rights, freedoms or lawful interests of another person by a state body, a local self-government body, by an organization or by a citizen which (who) is not endowed with such right by the present Code or by the other federal laws; in an application filed on one\'s own behalf, are put into dispute the acts which do not infringe the rights, freedoms or lawful interests of the applicant; 2) there exists a court decision which has come into legal force on the dispute between the same parties for the same object and on the same grounds, or a court ruling on the termination of the proceedings on the case in connection with the acceptance of the plaintiff\'s refusal from the claim or with the approval of the parties\' amicable settlement; 3) there exists a tribunal decision which has become obligatory for the parties and which has been passed on the dispute between the same parties for the same object and on the same grounds, with the exception of instances when the court has refused to issue a writ of execution for a forcible execution of the tribunal\'s decision. Danger of refusal in acceptance of the statement of claim is, that such refusal interferes with the repeated reference of the applicant in court with the claim besides to the respondent, about the same subject and on the same bases. However on definition of the judge about refusal in acceptance of the application the private complaint in higher court can be sent. The List of the bases for returning the statement of claim is also exhaustive and is defined by article 135 of the Civil Procedural Code. The judge shall return a statement of an action, if: • the plaintiff has not observed the pre-trial procedure for regulating a dispute established by the federal law for the given category of disputes or stipulated by the parties\' agreement, or the plaintiff has not submitted the documents confirming the observation of the pre-trial procedure for the regulation of the dispute with the defendant. For example, it concerns presentation of claims to carriers of cargoes. • the case is beyond the cognisance of the given court; • the statement of an action is filed by a legally incapable person; • the statement of an action is not signed, or the statement of an action is signed and filed by a person who is not endowed with the powers for signing it and lodging it to the court; • in the proceedings of one or other court or tribunal there is a case on the dispute between the same parties, for the same object and on the same grounds; • an application is filed by the plaintiff for the return of the statement of an action before the court has issued a ruling on the acceptance of this statement of a claim for its proceedings. As against refusal in acceptance of the statement of claim, returning of the statement of claim does not interfere with the repeated reference of the claimant in court with the claim besides to the respondent, about the same subject and on the same bases if the claimant will eliminate the admitted infringement. At submission of the statement of claim the legal person can face with the same problems, as the citizen. Concerned with quantity of cases of unreasonable refusals and returns of statements of claim the Supreme Arbitration court of the Russian Federation in the Decision from October, 31, 1996 has established, that « … the list of the bases for refusal in acceptance of the statement of claim is exhaustive and the courts can not interpretate it wider. The judge has no right to return the statement of claim for motive of not having all documents being proofs as so as the claimant can represent them during a trial ». - If you have faced with a problem of submission of the statement of claim, I recommend: at the following attempt to hand over the statement of claim to apply a list of the bases for refusal in acceptance of applications and the bases for return of the statement of claim and to write to the judge the covering letter that all remarks specified by the judge are eliminated in conformity: • with articles 134, 135 of Civil Procedural Code of Russian Federation, if you are the physical person; • with articles 107, 108 of Arbitrational Procedural Code if you operate in interests of the legal person. Before the reference in court I recommend to try to solve dispute by the written claim to the potential respondent, in pre-court order. It enables not only to save time for proceeding and money to payment of court costs, including a State Tax, but also more fundamentally to prepare the statement of claim in case proceeding will be inevitable. Such approach is also welcomed by court. Knowing a position of both parties, the judge, in turn, has an opportunity more fundamentally to be prepared for proceeding and faster to resolve a case.

Опубликовано 2018-01-04