Before you begin the long and costly processes in the building of Themis, you must first make a pre-trial settlement of the dispute in the civil process. This is done for the following reasons: there is no time for lengthy proceedings, reluctance to spend extra money, etc. In addition, according to current legislation, pre-trial settlement of a dispute in a civil process must be undertaken. Without such action, the court will ignore the claims. What do you need to know for this? We will analyze aspects of the pre-trial procedure for the settlement of disputes later in the article.
The concept
A bit of theory. Pre-trial settlement of a dispute in a civil proceeding is a measure that allows you to resolve the claims of two legal entities, both legal entities and individuals. It is important to solve the problem yourself, try to agree, find solutions. It often happens that both parties do not want to start litigation, but there are any obstacles to fulfill all the conditions of the contract in full.
Force Majeure as a reason for default
Situations may occur when, after the conclusion of the contract, one party falls into force majeure. We will simulate a situation. The company took the sale of seafood from a supplier. However, an emergency happened - the failure of refrigeration equipment. As a result, all products deteriorated. One side suffered serious losses. Now she needs to somehow pay for the goods with the supplier, but this is not possible.
Remedies
Pre-trial settlement of a dispute in a civil proceeding can help both parties. What ways out of this situation?
- Installment plan. The parties agree that for damaged goods, payment will be made in parts after a certain period of time.
- The agreement on a new batch for implementation. If the parties come to the conclusion that a truly emergency situation has occurred, they may decide to continue cooperation. The supplier can provide another batch to save the partner from ruin, thereby increasing his future profit. Such an example shows that the pre-trial procedure for resolving a dispute in a civil proceeding can not only solve a momentary conflict, but also make it possible to extract long-term profit.
- Provision of property of equal value to obligations. In our example, the company can provide the supplier with equipment and machinery as payment for spoiled seafood.
- Other measures that do not contradict the law.
Claim Handling
Let's talk more about the format of pre-trial dispute resolution. Before turning to the servants of Themis to resolve the dispute, it is necessary to present written claims to the other party. Of course, you can meet in person and discuss everything. However, the fact of such a meeting may be called into question if the other side does not confirm this. The court will simply refuse the claim.
A written complaint must be submitted to the other party. By sending a registered letter to the legal address of the company, you can be sure that the pre-trial procedure for the settlement of the dispute in the civil process is not violated. If the other party is an individual, then the letter must be sent to the place of registration. If he does not reside at the address and has not received a letter, this does not cancel the established procedure for the proceedings. This is tantamount to ignoring, as it is the citizen's duty to monitor incoming correspondence.
The essence and content of the claim
The written claim must indicate the essence of the violated rights, the grounds on which they arose. For example, a loan agreement, receipt, etc. In addition, you need to specify the time to eliminate the violated rights, as well as the consequences in case of failure to comply with the requirements.
If the claim is sent by a trustee, such as a lawyer, then a copy of a document confirming the relevant authority must be attached to it. This is usually a copy of the power of attorney certified by a notary.
The first thing to write in the claim is the data of the parties. The exact name of the organization, their legal address. If this is an individual, then his last name, first name, middle name, registration address.
The main part describes the existing relationship between the parties. For example, the lender and the borrower according to the loan agreement, the data on which must also be included: number, date of signing, list all the persons specified in it, etc. After this, it is necessary to indicate a violation of rights, arguing the position with a specific clause of the agreement, as well as relevant -legal norms. Complete the main part of the claim is necessary requirements with a mandatory deadline. If the process is related to cash refunds, then you must specify the details. However, this clause is optional, since it is indicated at the conclusion of obligations. At the end, put the number, signature, list of applications, which may include copies of the power of attorney, contracts, other documents.
Pre-trial settlement of a dispute in a civil proceeding: a sample of writing a claim
An example sample might look like this:
“I, Petr Petrovich Ivanov, have been hired by Salut OJSC since 2015 on the basis of an employment contract dated June 14, 2015.
My position is the head of the food department with a salary of 22 thousand rubles.
They gave me a workplace, set a shift schedule. I did my work conscientiously, completely fulfilled all points of the job description. Not subject to disciplinary punishments.
On May 16, 2016, an employer illegally removed me from work. As an argument, he indicated a state of intoxication. I did not agree with such conclusions, offered to conduct a medical examination. However, the head refused.
At the same time, I have every reason to believe that they are trying to fire me from my workplace. The employer constantly obstructs me in the implementation of labor activity. I have no desire to terminate the employment contract of my own free will. However, the employer constantly threatens with dismissal.
I do not agree with the actions of the company's management. I consider them, including my removal, illegal.
In accordance with the law, I have the right to receive non-pecuniary damage from illegal actions of the enterprise administration.
In addition, in connection with the violation of my rights, I was forced to contact the Legal Protection Legal Center, at the cash desk of which a sum of 10 thousand rubles was paid.
Based on the foregoing, I ask:
- Recognize the Act on finding me intoxicated as invalid.
- To pay in my favor an amount of 15 thousand rubles in compensation for non-pecuniary damage.
- To pay the losses incurred for contacting the law firm Legal Protection in the amount of 10 thousand rubles.
- Pay all amounts to my payroll account.
- To stop further all attempts of my dismissal. I refuse to quit voluntarily.
Application:
- A copy of the contract between me and the law firm Legal Protection.
- Cash receipt confirming payment of legal services. ”
All characters and names are invented, all coincidences with random people are random.
As we see, claims can be not only with banks against borrowers, but also with ordinary workers against employers. The latter case may preserve the workplace, because after a claim in case of dismissal, the judge may think that the motive is personal hostility, and not a violation of labor discipline. The above sample demonstrates a claim under labor law, and all disputes of workers and employers are included in the list of situations to which the pre-trial claim procedure for resolving disputes in civil proceedings must be applied.
Response time
The duration of the response to the claim depends on the specific situation provided for by federal law. However, in most cases, it is thirty days. If during this time there is no answer, then this means that the claim was ignored, you can safely file a lawsuit. Do not forget that the term begins to be calculated not from the moment of sending the registered letter, but from the moment it is received by the other party. Also, one should not rush to go to court on the thirty-first day. Perhaps the other side sent the answer at the last moment, and he had not yet reached the addressee.
Court denials
The absence of evidence in the claims that there was a mandatory pre-trial settlement of disputes in the civil process gives grounds for judges to refuse to consider claims. They fall into the category of improper statements.
Pre-trial settlement of arbitration disputes is also required. Courts and such disputes are left without movement.
Legal norm
The pre-trial settlement of the dispute in the civil process is enshrined in law. Article 132 of the Code of Civil Procedure of the Russian Federation indicates a list of documents that are attached to the statement of claim. The 7th paragraph says that evidence must be attached to it, confirming the implementation of the mandatory pre-trial settlement of the dispute. Therefore, if they are not, then the requirements will not be considered.
Legal notice on pre-trial settlement of disputes
So, before the court, it is imperative to take measures to independently solve the problem. This is enshrined in Art. 132 Code of Civil Procedure of the Russian Federation, Art. 126 APC of the Russian Federation. Legally pre-trial order is divided into two types:
- Mandatory according to law.
- “Other”, according to the concluded agreement.
Companies often specify in the contract dispute resolution procedure. In this case, no additional notifications and claims do not need to be sent. Both parties are believed to suggest how their future conflict should be resolved. Refusal to pre-trial resolution of problems, according to the contract, implies ignoring the claim. Therefore, as evidence of pre-trial proceedings, a copy of the contract indicating a specific clause can be attached to the statement of claim.
Benefits
The independent resolution of disputes within the law, of course, has a number of undeniable advantages:
- Time. It’s faster to negotiate with the other party yourself than to conduct lengthy lawsuits for months.
- Benefit. After a court decision, payments can last for many years. You can try to restructure the debt yourself.
- Possible customer retention. If you show the wisdom of a diplomat, then you can not only repay the debt, but also maintain confidence in a former client. Above, we have already simulated the situation with the seafood supplier.
- No need to look for a good lawyer. Litigation in each category of cases requires compulsory knowledge in this area. Writing a claim is much easier than writing a claim. To do this, you will have to hire an experienced lawyer if he is not on staff. These are additional costs. Of course, they will fall on the shoulders of the losing side, however, lawyers need to pay immediately, and the return of money through the court can be very delayed.
Summary
It can be summarized that an attempt to solve a problem with a former partner or client on their own, before the trial, can provide significant advantages that all businessmen value so much: saving time, saving money, no need to acquire one-time knowledge in the field of law, which may no longer be needed. In addition, such processes are mandatory, without them it is impossible to turn to the servants of Themis in order to restore civil rights.
We hope that our article will help in difficult legal situations. As they say, warned, then armed.