🖐🏾 🌯 🧝🏼 Civil procedure ⛸️ 🤧 🎅🏾

The initiation of a civil case in a lawsuit is the result of two consecutive procedural actions : a written appeal from a person interested in restoring his violated rights and a court accepting this application for consideration. A written document that is submitted by a legal or natural person to resolve a specific legal dispute is called a lawsuit.

Stages of civil affairs

The initiation of a civil case is the first stage of the trial. It consists in the appeal of interested citizens (organizations) to the judicial authority with a lawsuit, complaint or statement, the purpose of which is to protect the violated rights of the plaintiff.

The next stage in the civil case is preparation for the trial. The purpose of this stage is to ensure timely and correct resolution of the case within the framework of the court session. At this stage, the judge reports on inaccuracies discovered by him, asks for additional documents, attracts other persons interested in the outcome of the case, and so on. After that, the judge appoints the case for trial and notifies the parties of the time and date of its consideration.

The third judicial stage is the lawsuit itself. At this stage, the case is examined on the merits. In most cases, several court hearings are held at this stage (if it is not possible to resolve the case within one session). In court, evidence is examined, evidence is heard, and a court decision is issued based on the result.

The fourth stage is the appeal of the case in cassation and the filing of complaints about decisions and decisions that have not yet entered into force. At this stage, the validity and legality of the decision made by the judge is checked. The specified stage takes place in the presence of a complaint from one of the parties to the process.

The fifth stage is a review of the case in a supervisory order. This stage is used in exceptional cases: in case of objection to a court decision by the court, officials or prosecutors.

The sixth stage is the revision of a civil case for new circumstances that were not known when the court made the decision.

The seventh stage of the case is the enforcement of a judgment. At this stage, the defendant is obliged to fulfill the requirements specified in the decision on a voluntary or compulsory basis.

The essence of the lawsuit

To file a lawsuit to institute civil proceedings in court, the plaintiff must meet the following conditions:

be capable and competent to file a claim;
to fulfill all pre-trial conditions for the implementation of the application within the framework of the provisions of Articles 134 and 135 of the Civil Procedure Code of the Russian Federation ;
submit documents in compliance with the rules of appeal to the judicial authority.

The rules for filing a lawsuit in civil proceedings are enshrined in the 131st, 88th and 132nd articles of the Civil Procedure Code of the Russian Federation. The general rules are: compliance with the written application form, annex to the lawsuit copies of the number of defendants and third parties, payment of the state fee (if there are no grounds for exemption from it).

These rules for filing a civil suit lawsuit apply at all levels of civil proceedings (lawsuit, order, special, etc.) and in all instances (cassation, appeal, supervision, review due to new circumstances, etc.).

Failure to comply with these rules entails legal consequences. For example, if the applicant is not entitled to file a lawsuit, a certain consequence arises for him: he will be refused to initiate civil proceedings on his application, and he will not be entitled to file an identical claim in the future.

In some cases, a violation of the terms of the action may bring correctable results. For example, if the applicant has violated the rules of jurisdiction when filing a lawsuit, the same legal consequences await him (civil proceedings will be refused). In this case, the applicant has the right to send the same lawsuit to the appropriate court.

In case of violation of the application, the civil procedural law determines the right of the court not only to refuse to accept the lawsuit and institute civil proceedings, but also to return the plaintiff a statement that allows him to be redirected to remedy these shortcomings (according to Article 135 of the Code of Civil Procedure).

Another right of the court in case of non-compliance of the submitted application with the norms is to leave the claim without consideration. Moreover, the initiation of proceedings in the civil process has not yet taken place, but the judge has already accepted the case. In this case, the applicant is given a certain period to eliminate the specified defects of the claim. If the plaintiff fulfills all the stated requirements, the judge makes a new ruling on accepting the case for proceedings and initiating a civil case. If the violations established by the judge are not eliminated, the claim shall be returned to the applicant.

If there are no deficiencies in the lawsuit and the submitted documents, the judge immediately makes a decision to institute proceedings.

Claims not considered in civil proceedings

Refusal to initiate civil proceedings takes place in the following cases:

The case is not under the jurisdiction of the court.
At least one of the parties is incompetent.
The plaintiff did not comply with the pre-trial preliminary procedure for resolving the dispute (for example, in labor disputes).
There is an identical, previously considered dispute (the same parties, the same subject and the same grounds).
There is a court decision from the arbitrator.
The case is not jurisdictional.
The lawsuit was filed by a person recognized as legally incompetent.
The representative filing the application does not have the authority to do so.

What is a statement of claim?

The procedure for initiating civil cases includes the mandatory filing of a statement of claim, that is, a written request drawn up in accordance with civil procedural rules, which contains certain requirements for the restoration of violated rights, interests and freedoms of the applicant.

This type of application is the only way to file a petition with a judicial authority. It must meet certain requirements for the content, form and method of presentation. The lawsuit itself, objections to it and counterclaims are made out only in writing.

Compliance with the written form guarantees the rights of the applicant and the defendant to the defense on the part of the judicial authorities, and is also an expression of the content of the claims and positions of the parties.

Consequences of civil proceedings

At the time of the court's decision to institute proceedings within the framework of the civil process, consequences of a substantive and civil procedural nature arise.

At the first stage (initiation of civil proceedings), procedural civil relations arise between the plaintiff and the defendant. From the same time begins the countdown of the time periods established by the procedural legislation and the imposition of interim measures (at the request of the parties)

If at the stage of initiating a civil case (or at another stage, but before the court makes a final decision), the plaintiff refused the lawsuit filed, the expenses incurred by him of a judicial nature are not refundable (according to the first part of Article 101 of the Civil Procedure Code).

If at the stage of initiating a civil case in court or in the course of the proceedings, the defendant voluntarily satisfied the claim of the plaintiff before the judge makes a decision, nevertheless expenses of the judicial type (payment of state fees and services of the representative of the plaintiff) are imposed on him. When the parties conclude a settlement agreement, the expenses are divided in half between the parties.

The procedural legal consequences of a criminal case in a civil proceeding are as follows:

loss by the interested party of the right to choose a place for consideration of a court case, if there is an alternative jurisdiction;
the loss by both parties of the right to choose the place of consideration of the case, if there is a contractual jurisdiction.

The consequences of a substantive nature in initiating a civil case in court are as follows:

The limitation period for filing a claim is interrupted. If the case is left without consideration, the term is not interrupted.
The alimony awarded to the defendant is calculated from the day the plaintiff appeals to the court (on the basis of Article 107 para. 2 of the Family Code of the Russian Federation). In some cases, they are recovered for the past time period.
The calculation of the return of property from another's unlawful possession (in the case of a bona fide owner) is made from the date when he became aware of the illegality of ownership (or from the day the subpoena was received from the owner).

Types of applications in civil proceedings

The initiation of a civil case takes place upon application by a person whose rights, interests or freedoms are violated on the basis of the provisions of Art. 4 of the Code of Civil Procedure. In Art. 45 and Art. 46 of the Code and other laws established cases where civil proceedings in a case can be instituted on the basis of a statement from the subject of legal relations, who advocates the interests of a third party, an indefinite number of people, in the interests of people at the local level or the country as a whole.

To resolve cases in the lawsuit, the grounds for initiating a civil case is a statement of claim.

In some cases, the basis for consideration of the case is a statement. These include the following:

Cases that arise from public relations.
Cases of special consideration.
Cases on the execution and recognition of decisions of courts of foreign states or their arbitration (arbitration) judges.
Cases of contesting decisions made by arbitration courts.
Cases for the issuance of executive documents by decision of the arbitrators.

Features of the statement of claim

The statement of claim must meet certain requirements for it to be accepted by the court for consideration:

the plaintiff submitting the application must be legally competent under the rules of Article 37 of the Civil Procedure Code;
the lawsuit must be filed under the rules of jurisdiction established by articles 23 through 32 of the Code of Civil Procedure;
the application is submitted in the form of a written document (printed or written by hand);
the application and the attached documents must be submitted with copies according to the number of participants in the process (according to the 132nd article of the Civil Procedure Code);
the application must be accompanied by the original document confirming payment of state duty;
when filing a claim by a representative, a document confirming representative authority (for example, a power of attorney) is attached to the application.

Elements of the statement of claim

The application must specify certain information without which the document may not be accepted by the court. According to the 131st article of the Code of Civil Procedure, the mandatory elements of the application are:

The full name of the judicial authority considering the case, its address.
Information about the plaintiff, his place of registration and place of residence, telephone for communication.
Information about the defendant, his place of registration and place of residence, telephone for communication.
The essence of the violation of the law or the threat of its violation, the requirements of the plaintiff.
Circumstances and legal norms on which the requirements of the plaintiff are based.
Evidence that confirms the circumstances set forth by the plaintiff.
Indication and calculation of the price of the claim.
Information that the plaintiff complied with the pre-trial procedure for resolving an existing dispute with the defendant (if such a procedure is mandatory).
An application indicating the documents attached to the claim, in support of the plaintiff's claims.

If the plaintiff considers it necessary, he must indicate other data that may be relevant to the resolution of the case.

Other information indicated in the statement of claim

If the statement of claim is filed by the prosecutor to protect the rights, interests and freedoms of an undetermined number of persons, or if there is a filing of the statement to protect the legal interests of the municipality, the Russian entity or the state as a whole, the statement of claim must specify which rights have been violated, what are the interests defendant or persons represented by him.

The statement of claim must also indicate all references to laws or other legal regulations that confirm the legal basis for the protection of the persons specified in the lawsuit.

If the prosecutor appeals to the court to protect the legitimate rights and interests of a particular citizen, the statement of claim must indicate the reasons for the impossibility of filing a claim by that citizen, as well as attach documents confirming these facts.

The statement of claim must necessarily indicate the date the document was prepared. In addition, the application must be signed by the applicant himself. If the application is signed by the representative of the plaintiff, the power of attorney attached to the case must specify the authority to sign such documents.

According to Art. 131 p. 4 of the Code of Civil Procedure, the plaintiff must indicate what exactly the violation itself is or the threat to violate legal rights, freedoms or its interests. Most often, such a clarification is necessary when it comes to protecting rights in cases arising from public relations.

Since the statement of claim is filed with the application, documents that confirm the payment of the state duty, cases of exemption from the payment of the state duty must also be notarized. Confirmation can be indicated in the statement of claim on the legal norm, according to which the plaintiff may not pay the state fee (or the right to pay it in a smaller amount). In addition, if we are talking about a plaintiff with tax (duty) benefits, he must submit a document that confirms the applicant’s privileged position.

The legislation also gives the applicant the right to file an application for exemption from payment of state duty or for its deferment. As proof of the impossibility of timely payment of the fee, the plaintiff must submit documents confirming the difficult financial situation, or other facts, because of which the plaintiff cannot timely and fully pay the specified amount.

When filing a statement of claim by the representative, he must attach the original power of attorney, which will spell out all the powers in the framework of civil proceedings. In the event that the powers will be of a limited nature, the court will not allow the representative to carry out actions not recorded in the power of attorney. If we are talking about the participation of a representative, in the petitioner part, the collection of the attorney’s fees from the defendant can be immediately declared.

Civil procedure