Denial of action in a civil proceeding is a specific form of protection of rights. The refusal is carried out voluntarily by the plaintiff, without pressure from the defendant, regardless of what stage of the trial the case is at.
The concept
Waiver of the claims contained in the claim implies the right of the plaintiff to complete the civil process by recalling all or part of the claims against the defendant. An indication of the possibility of failure is contained in Art. 39 Code of Civil Procedure of the Russian Federation and represents the discretionary law of the plaintiff. Moreover, the rejection of a claim in a civil proceeding also means the termination of a substantive claim. Nevertheless, such expression of will does not in any way affect the substantive law itself and does not exclude its extrajudicial defense, but may be related to the inappropriateness of the statement of claim or, which is much more common, especially when it comes to the refusal of part of the claims, independent execution by the respondent of actions to restore violated rights of the plaintiff. So, the refusal of judicial protection is consistent with the subjective nature of the rights and the ability to dispose of them at discretion in accordance with the provisions of Article 9 of the Civil Code.
Causes
In most cases, the judge easily accepts the refusal if the plaintiff duly informs him of the reasons. The arguments by which the applicant is guided may be different. If the claim is connected with a material claim, then most likely the defendant could pay the amount of the debt before the court hearing and reimburse the legal costs. In such cases, only part of the requirements may be waived. For example, the debt was paid in principal, but interest remained unpaid. The termination of the process at the initiative of the plaintiff is also possible in connection with new circumstances in which it will be unprofitable or unreasonable to maintain claims.
The plaintiff may refuse the claim if the other party has ceased to violate the rights. For example, the defendant opened a passage through the territory in respect of which an easement was previously established. In disputes about divorce, the basis for the withdrawal of a claim may be established relations between spouses. And in cases of protection of dignity - the public recognition of the defendant in the publication of information that is not true, does not correspond to reality.
Types of waiver of claims
Studying the norms of the Code of Civil Procedure allows us to talk about two types of refusal: a complete rejection of a claim in a civil process, expressed in the denial of all the claims stated earlier, and partial. A partial refusal should be distinguished from a reduction in claims, although along with a decrease in claims, the completion of the proceedings in a certain part also occurs.
Changing the size of claims in the direction of their reduction does not mean the termination of the trial and does not mean that the plaintiff does not have the right to re-apply the claims, as in case of refusal. Also, the possibility of combining these actions is not completely ruled out. For example, after filing a claim for termination of the contract, returning money for the goods, as well as paying the amount of the fine, “dripping” forfeit and reimbursement of legal costs, the defendant decided to transfer the amount equal to the cost of the goods (which does not exclude the requirements for the fine). This action limits the amount of the penalty to the date of return of money for the goods and forces the plaintiff to abandon the main claim in the process, since it is fulfilled.
The form of rejection of claims in civil proceedings
Before starting the meeting, the judge, in accordance with the rules of the proceedings, asks the plaintiff if he has a desire to conclude an amicable agreement or the will to refuse a lawsuit in a civil proceeding. Article 173 of the Code of Civil Procedure by its content implies two forms of refusal - oral and written.
According to general rules, an oral request can be made in the process before the court is removed to a special room and can be submitted on a par with a written appeal or cassation. Moreover, the form itself does not affect the legal effect of the submitted application. An oral statement is recorded in the protocol, and in case of a video conference, a written confirmation from the judicial authority conducting such an event will be required.
Procedure for waiver of claims in the framework of civil proceedings
As already mentioned, the refusal can be carried out orally and in writing, while the oral statement must be recorded in the minutes of the meeting, and the court, among other things, may require the signing of the oral petition. However, in most cases, the judge will prefer a written statement to the oral statement, since for the former it is necessary to draw up the minutes of the meeting soon. A written statement submitted during the meeting is attached to the case, which is what the secretary makes a note of.
How does a court accept a waiver of a claim
The court accepts the waiver of the claim after receiving the application. The court is obliged to explain to the plaintiff what consequences this follows, in support of which he puts the list. Based on the refusal, the judge draws up a ruling that completes the judicial proceedings. However, if it concerned only part of the claims, the proceedings continue. In this case, the waiver of the claim must be unconditional, otherwise it is a settlement agreement in relation to a specific subject. A refusal may be accepted both in the appeal and cassation instance, since its very essence does not contradict this outcome of the case. An essential condition for accepting a waiver of a claim is the absence of violations of substantive law.
Court ruling on acceptance of waiver of claim
Based on the results of the consideration of the application for refusal of claims, the court shall issue an appropriate determination. The definition should include 4 parts: introduction, description, motivation and resolution. The introduction shall indicate the composition of the court, the list of persons participating in the case, as well as a brief description of the plaintiff's claims. The following describes the circumstances of the case in chronological order. The court then brings the regulatory framework under the lawful admissibility of the refusal in order to next issue a resolution on the completion of proceedings with a brief description of the negative consequences of the refusal for the plaintiff. At the end, the court indicates how long the decision can be appealed.
Can a court not accept a waiver of a lawsuit in a civil proceeding?
The consequences of the rejection of the claim are significant for the applicant, therefore, the court must evaluate whether the plaintiff violates his own legitimate interests. In practice, such a combination of circumstances is quite rare. Art. 39 of the Code of Civil Procedure contains a statement that the court has the right to reject a waiver of a claim if such action by the plaintiff is directed against the rights of third parties, as well as legal relations protected by law. To find out whether there is a violation of rights, the court has the right, only having examined the case on the merits. However, sometimes the answer to the question of the legality of a waiver of a claim is on the surface.
For example, the court cannot satisfy the petition for refusal in the case of the assignment of alimony to minors, and their representative (often a woman) insists on fixing the act of refusal, so that subsequently the other parent would not subsequently have the right to file a claim for alimony from the children . Nevertheless, such a refusal substantially violates the right of children to receive livelihoods from both parents.
Consequences of a waiver of a claim
The refusal of a claim in a civil proceeding, the consequences of which are not so favorable for the plaintiff, must be carefully considered beforehand. Firstly, the refusal deprives the plaintiff of the right to compensation for the money spent on paying for the services of a representative, conducting expert examinations, etc. In accordance with Art. 101 Code of Civil Procedure of the Russian Federation, the plaintiff will be obliged to pay for the defendant all the costs that he incurred in connection with the claim. The plaintiff is also deprived of the right to file a claim again with the same subject and reason; upon receipt of such a claim, the court will issue a ruling on the refusal to accept it. If the court mistakenly starts the proceedings, then upon clarification of the circumstances it will be terminated. The best option would be to conclude an amicable agreement, since the parties will be able to agree on all issues in the option that suits them, especially regarding legal costs.
Refusal of claim in civil proceedings: sample application
The heading of the application for refusal indicates the court to which he was sent, F. I. O. and the parties' data, as well as the details of the case. The wording of the application is approximately as follows:
“A lawsuit _____________ (personal data of the plaintiff) against ________________ (personal data of the defendant) about ______________ (the essence of the claim) is under consideration by the N court of the city of _______ __________ region.
Since the controversial issue was resolved before the hearing, the plaintiff considers it correct to refuse the claims stated earlier. The refusal was compiled voluntarily, the plaintiff is aware of the legal consequences of the court's satisfaction of this application. Guided by the provisions of Article. 39 of the Civil Code of the Russian Federation, I ask you to take into consideration and reject the lawsuit in the civil process and return the state duty. ”
Feasibility of terminating the proceedings on the initiative of the plaintiff
The action to refuse claims contains so many negative consequences for the plaintiff that the representative of the party must carefully consider his decision. If there are deficiencies in the justification of the claim, the applicant is better off correcting the deficiencies before deciding whether to accept the claim. According to the provisions of Article 135 of the Code of Civil Procedure, the plaintiff has the right to return the claim before making a decision on its adoption, and return, in turn, is not an obstacle to a repeated application on the same subjects and grounds. When the lawsuit has already been accepted for production, it is much more correct to conclude a settlement agreement.
However, in some cases, the plaintiff is really beneficial to abandon the lawsuit, especially when it comes to relationships that are long-term. For example, former spouses agreed to pay child support in a larger amount than one quarter of income.
Refund of state duty in case of rejection of claim
Despite the rejection of the claim, the state duty is returned to the plaintiff on the basis of the application in full, the exception is cases of appeal to the Supreme Court, then only half of the amount is returned with an amicable agreement, and with voluntary actions by the defendant before the hearing the paid fee is not returned at all, even if there was a waiver of the claim. The refund of the duty is carried out only if the original of the payment document or a certificate of payment from the bank. The application is compiled in a free form and contains information about the reasons for the return, the amount of the fee, information about the statement of claim, the applicant. The legal basis for satisfying the claim is the waiver of the claim. The state duty is returned by a court decision in the form of a determination and takes effect within 15 days. After that, it is necessary to submit to the tax authority a certificate of payment, a passport, an appropriate statement indicating the current account, a copy of the determination, the basis of which was the rejection of the claim.
The fee is returned within 3 years from the date of transfer of funds (as a general rule within 1 month) upon return of overpaid funds.
Thus, the refusal in the process of substantive requirements contains a number of not the most positive consequences for the plaintiff in the form of legal costs and compensation for the costs of the defendant, in connection with which the feasibility of an application to complete the process on the initiative of the applicant is questioned. In addition, the plaintiff loses the opportunity to re-appeal. A settlement is the best alternative to such a measure as a waiver of a lawsuit in a civil proceeding. The state duty is refunded on the basis of a court ruling and an application to the tax authority.