The current Code of Civil Procedure counterclaim is regarded as a special type of protection of the defendant, who puts forward his claims in contrast to the requirements of the plaintiff. Such claims can only be made in a court case. The main thing is that the counter and initial requirements are interconnected.
Features of the procedure
If a counterclaim is not accepted in the framework of a specific trial, the defendant retains the right to submit independent claims in the framework of a new trial.
It is best to file such a petition at the stage when materials are being prepared for consideration. In this case, the judge suspends the process and gives the other side time to familiarize themselves with the requirements of the defendant.
Very rarely, but jurisdiction can change after they decide to file a counterclaim. For example, the dispute was considered by a justice of the peace, and counterclaims turned out to be significant. Therefore, the case goes to the judge of general jurisdiction.
Sample counterclaim in a civil case
In ... (name of court ...)
The defendant ...
The plaintiff ...
Cost of claim ...
Counterclaim
In court ... name, address ... pending case No. ... from ... filed in the suit ... F. I.O. (details of the enterprise) ... (brief description of the essence of the dispute).
However, the plaintiff today has a debt to the defendant in the amount of ... rubles, which arose under the following circumstances ...
I believe that the counterclaim and the initial claim have a mutual relationship, and the inclusion of my claims will only lead to a quick settlement of the dispute.
Based on the foregoing and guided by ... Articles Code of Civil Procedure of the Russian Federation,
I beg:
- The requirements are registered.
Applications
Date of compilation, signature, F. I. O.
Naturally, this sample of a counterclaim in a civil case is not a standard, but is useful as a basis for drawing up a document. The main thing is to adhere to the norms provided for by civil law, which are presented to any claims.
Second example
The second example of a counterclaim in a civil case:
The defendant ...
The plaintiff ...
Cost of claim ...
Counterclaim
On the obligation not to obstruct the use of real estate
I, F.I.O., am the owner of ... a share of the apartment, which is located at: ... total area ... sq. m. My right is confirmed by a certificate of ownership ... date ...
Together with the defendant, we lived in this premises for ... years. A marriage was concluded between the plaintiff and the defendant, which is confirmed by ... a certificate ... They carried out repairs together for a total of ... rubles, purchased furniture for a total of ... rubles ...
After ... (time period is indicated) the plaintiff had a mistress, he began to abuse alcohol with her. Together they in every possible way mocked me morally ... In the end, I had to move out of the apartment ...
To date, the defendant has filed for a divorce, which is being considered by a justice of the peace ...
To date, I do not have the opportunity to get into my own housing, as the defendant changed castles, in every way impedes access to housing. I have repeatedly addressed the local police officer, which is confirmed ...
To date, I am the legal owner of part of the apartment, but I can not fully use it.
Given the above and guided by the articles ... Code of Civil Procedure of the Russian Federation,
I beg:
- Oblige the defendant ... F.AND.O. not to obstruct the use of the apartment, located at ...
Date of compilation, signature, F. I. O.
Grounds for the adoption of the application by the judge
There are only three reasons for a judge to accept counterclaims:
- if they are opposed to the basic requirements;
- if the satisfaction of the counterclaim excludes the full or partial satisfaction of the initial requirements;
- if both claims are completely interconnected, and the second statement will only make it possible to more quickly and correctly assess the evidence and resolve the dispute.
If these requirements are not met, the judge will refuse to accept the application. The ruling on the refusal to accept counterclaims is not subject to appeal.
How is the consideration of claims from the defendant
After the adoption of a counterclaim in a civil case (the sample is given in the text), it is considered in the general manner. Moreover, the parties in the process do not change, the plaintiff is still the plaintiff, and the defendant is the defendant. Each party has the right to justify its position, submit arguments and provide new circumstances.
After consideration of the case, the court makes a decision, indicating satisfaction or rejection of both the initial and counterclaims.
For example, in the decision, this can be formulated as follows: “... Satisfy the requirements of the plaintiff ... F. I. O. ... against the defendant ... F. I. O ... ... and the counterclaims of the defendant be refused for ... the reasons are indicated ... " But it may happen that the judge refuses the claims to both parties.
National tax
According to the requirements of the Civil Procedure Code, a counterclaim is filed on a paid basis. The tax code establishes a fixed rate of 2 thousand rubles. If the requirements are of a property nature, then 2% must be added to this amount. These percentages are calculated on the value of the property rights object, which is disputed in court, or on the specific amount disputed.
Conclusion
In general, counterclaims are presented in the same order as the main ones. The right to file a counterclaim arises from the defendant in the event that they are opposed to the main. The simplest example is if the plaintiff makes demands for child support, and the defendant submits a counterclaim to challenge paternity. In general, a counterclaim is a real opportunity to defend your interests in court for the defendant.