In civil proceedings, a claim refers to a written form of expression of the applicant's claims. Its grounds are evidence confirming the occurrence of violations of interests and rights. The subject of the claim is the content of the claims. They can be associated with various issues: compensation for damage, restoration, recognition of the right, etc.
Legislation provides for the possibility of changing the basis or subject of a claim. It is enshrined in Art. 39 GIC. Comments on this rule indicate the ambiguity of approaches to its application by the courts. The fact is that in practice the concepts of “change” and “clarification” of requirements are often confused. In this regard, there are many problems. Let us further consider the main provisions of Art. 39 Code of Civil Procedure of the Russian Federation with comments.
The content of the norm
The applicant can change the subject or the basis of the requirements, reduce / increase their size, refuse them. The defendant, in turn, has the right to recognize the claim. The parties may also come to a settlement. All these features are provided for in Part 1 of Art. 39 Code of Civil Procedure of the Russian Federation. Article 173 of the Code establishes that statements about the recognition by the defendant of claims, the plaintiff’s refusal of them and the conditions for concluding an agreement between the parties should be reflected in the minutes of the meeting and be certified by the signatures of the parties to the dispute. If the relevant petitions were made in writing, they are attached to the materials. This is noted in the protocol.
These statements, according to 2 parts of Art. 39 Code of Civil Procedure, are not accepted if it is contrary to regulatory acts or infringes on the interests of other persons.
In the event of a change in the subject matter or the basis of claims, an increase / decrease in their size, the course of the proceedings begins from the date of the relevant action.
Art. 39 Code of Civil Procedure of the Russian Federation with comments
The procedural law provides for the possibility to clarify or amend the requirements stated by the plaintiff. The latter is provided for in Art. 39 Code of Civil Procedure of the Russian Federation. The subject is entitled to change the basis or subject of the application at any stage of the proceedings. Quite often, in practice, the courts broadly interpret the provisions of Art. 39 Code of Civil Procedure of the Russian Federation.
Clarification of claims is possible at the preparatory stage of the dispute. If you interpret the provisions of the Code literally, the defendant is given the opportunity to ask for clarification of the claimant's claims.
If the plaintiff has reason to assume formalism, the strictness of the judge or his intention to clearly follow the letter of the law, it is advisable not to specify, namely, to change the claim on the basis of Art. 39 GIC.
Types of refinements
Lawyers distinguish two types:
- Clarification to the claim, containing minor corrections or excluding any requirement. In the first case, we are talking about typos, errors, incorrectly referenced documents, etc. In the application for the correction of the requirements, it is advisable to indicate a specific item undergoing correction.
- Clarification involving a significant change in the initial requirements. As a rule, it is about including additional claims or adjusting the content of the application. In this case, experts recommend drawing up a lawsuit in a new edition.
According to lawyers, the second option is more preferable for the applicant, especially with limited procedural timelines, initially insufficiently strong evidence base, etc.
Application Guidelines
Any document sent to the court is drawn up according to the rules established in the procedural legislation. An application for changing requirements in accordance with Art. 39 GIC.
The application should indicate the name of the court, case number, F.I.O. of the judge. This information is necessary so that the staff of the office can quickly transfer the application to the appropriate secretary.
If the change is insignificant or only one requirement is adjusted, in order to avoid contradictions in the documents, it should be additionally indicated that other claims remain unchanged.
The nuances of applying Art. 39 GIC
The norm states that the applicant can change the basis or subject of the claim. The union "or" is a separation. Accordingly, the law allows the applicant to change one thing: either the subject or the basis. Correction of both is not allowed. This is due to the fact that with a simultaneous change in the basis and subject matter, the lawsuit will become completely different.
Court Responsibilities
In the event of a change / clarification of the claim, the judge must assess the appropriateness of the adjustments. In particular, it is necessary to check whether they infringe upon the interests of other persons. For example, it is not allowed to change / clarify the requirements that violate the labor rights of persons or aimed at exempting entities from material liability bypassing the law.
By approving a settlement agreement, the parties cannot change the amount of compensation for damage caused to the health / life of citizens in the performance of their labor functions, the amount of alimony, if established by law.
In some cases, additional procedural steps may be required. For example, when dividing a house (allocation of shares in kind), it is necessary to find out whether it is technically possible to do this. For this, the court appoints an examination.
Important point
Often the provisions of part 1 of article 39 are interpreted by the courts incorrectly. For example, in some instances it is customary to consider that the plaintiff can change the subject or basis of claims only once in a single proceeding. The courts argue their position by the fact that the legislator could use the verb “change”, and not “change”. Once the last word is used, and not the first, then you need to proceed from a literal interpretation of the rules. Meanwhile, this approach significantly limits the plaintiff's rights.
An explanation on this issue was given by the RF Armed Forces. The court indicated that the plaintiff was given the right to change the subject or the basis of the claim without any restrictions. Normally, the legislator has not indicated a specific number of times in which the applicant can realize his opportunity.
It is worth saying that verbs in the initial form are also found in other norms of the GIC. For example, according to 5 part 159 of the article of the Code, the court may remove entities that violate the order of the meeting. In this case, the legislator did not mean that the judge has the right to use the norm only once. If during the consideration of the case one entity is removed, in case of violation of the rules by another person, the court has the right to do with it the same way as with the previous citizen.
Similarly, the provisions of paragraph 6 of article 167 should be interpreted. The norm states that the court may postpone the meeting at the request of the subject, due to the inability of his representative to appear at the meeting for good reason.
There are quite a few such examples in the Code. In this case, no one doubts that the court can use these or other opportunities several times. Consequently, production participants can also exercise their rights multiple times.
Conclusion
In some cases, changing or clarifying requirements is a necessary procedural action. Some applicants, entering into legal proceedings, are not well versed in the intricacies of the legislation and indicate in the lawsuits not entirely true claims. However, it is worth noting that any changes or clarifications made to the text drag out the proceedings. In this regard, it is advisable to contact a qualified lawyer for help in drawing up a lawsuit.