The interim measures provided for in the Code of Civil Procedure of the Russian Federation are used quite often in judicial practice. Their essence is that, after a decision is made in a case, it is possible to enforce it. Simply put, in the Code of Civil Procedure interim measures are fixed as guarantees to satisfy the plaintiff's material claims if the court decides in his favor. Let us consider in more detail this legal institution.
Interim measures in the CCP: definition
Often, defendants, having learned that a civil lawsuit has been filed against them, begin to actively perform certain actions aimed at fictitiously disposing of property. Cars, real estate are supposedly donated to relatives, money is quickly withdrawn from bank accounts, tangible assets are transferred or sold to third parties.
Such improper behavior negatively affects the plaintiff's ability to recover the amount of claims from the defendant. In order to maintain a high probability of satisfying the requirements of the applicant, interim measures are provided. The Code of Civil Procedure establishes the procedure, conditions, grounds for their application.
It is worth noting that this legal institution is used not only in civil, but also in criminal and arbitration proceedings.
In fact, interim measures are actions of a judge who has accepted a lawsuit in his proceedings, aimed at subsequent execution of a decision.
Grounds
Despite the fact that the judge commits the actions, he cannot act as the initiator. In accordance with the Code of Civil Procedure, a petition for interim measures can be submitted by the plaintiff, prosecutor, as well as interested parties - third parties. Moreover, the latter may not state independent requirements.
The latter, for example, include guardianship authorities and guardianship, legal representatives (parents) of a minor and other persons.
The key reason for taking interim measures is a firm belief that if they are not taken, the execution of the decision will be difficult or impossible.
Petition
According to the Code of Civil Procedure, interim measures at the request of the interested subject can be taken at any time during the proceedings, but before a final decision is made. In the arbitration process (in the proceedings of disputes between economic entities), a petition may be filed even before the commencement of consideration.
Additional features
The law allows a petition to be submitted simultaneously with claims. In this case, the application will be considered after the adoption of the claim for production.
In this case, the effectiveness of the collateral increases significantly, since the defendant at this point still does not know about the lawsuit filed against him.
Decor
In the application, the person concerned indicates:
- Subject of claim.
- Sum of requirements.
- The specific measures to be taken to ensure.
- Justification of the need for their application.
Usually, a petition of a plaintiff on real fears that the defendant will take actions aimed at reducing the mass of property, which will negatively affect the process of execution of a court order, is sufficient in the petition.
Features
The court shall consider the application for the application of security measures on the day of its filing. In this case, the determination shall be made and shall enter into force immediately after consideration.
To preserve the property in integrity, a writ of execution is issued to the applicant immediately after the adoption of the decision on the approval of the application. IL is transmitted to the bailiffs.
When making claims on the application of security measures to an interested person, the principle of proportionality must be observed. This means that their size should not be significantly larger than the volume of claims.
The latter is of particular practical importance. For example, with the cost of a claim of 10 thousand rubles. the seizure of a car or apartment would be unreasonable. Courts usually strictly adhere to the principle of proportionality. The fact is that the defendant can challenge the ruling on interim measures if they do not meet the requirements stated in the lawsuit. Moreover, the entity may subsequently foreclose on the plaintiff's property for the losses incurred.
Types of measures
Specific security measures are enshrined in article 134 of the Code of Civil Procedure. These include:
- Seizure of property or cash. It should be said that this measure can be applied to values that are not only directly with the defendant, but also with other entities (for example, in pledge or use).
- The ban on certain actions. For example, a court may establish a restriction on the sale of real estate or cars.
- The ban on actions in favor of the defendant, including the transfer of values.
- Suspension of recovery under an executive document issued earlier. This measure is applied if the IL is appealed by the debtor.
The indicated options can be used both individually and in combination.
In case of violation of the ban on the sale of property or providing it to other persons, the defendant may be fined up to 100 minimum wages and charged with the obligation to compensate for losses resulting from this from the plaintiff.
Nuances
It should be said that the security can be applied not only to a claim expressed in monetary terms, but also to claims for recognition of rights, for example, copyrights. In such a situation, the court has the right to prohibit the publication of the controversial work.
To apply measures not established by the Code of Civil Procedure is unacceptable.
Rules for using measures
If the court, based on the results of consideration of the petition and case materials, comes to the conclusion that the defendant can reduce the size of property by his actions, create obstacles for the final decision to be executed in the future, he makes a ruling and transfers it to the FSSP.
The plaintiff may ask you to transfer the decision on the application of interim measures directly to him.
After the determination is made, a number of procedural actions are performed.
First of all, the bodies that carry out state registration of rights to property, and banking structures in which the defendant has accounts are notified.
If the location of the material assets is unknown, the employee of the FSSP, who accepted the executive document for production, takes actions aimed at finding them.
Defendant Rights
The subject in respect of which security measures have been taken may apply for their replacement. In practice, defendants quite often exercise this right. For example, a person may ask the court to replace the arrest of an apartment with a car. In considering the application, the court, however, must follow the principle of proportionality.
The law allows for the replacement of interim measures by depositing money on a court deposit. The amount will be equal to the value of the claim.
The decision to replace the interim measure must be made on the day of the filing of the relevant application and takes effect immediately.
Removal of interim measures
The Code of Civil Procedure provides several reasons for this.
First of all, this is a denial of claim. In accordance with the Code of Civil Procedure, cancellation of interim measures is allowed only after the decision comes into force. It should be borne in mind that some authorities (traffic police, Rosreestr, for example) require an additional court ruling on the removal of measures.
Cancellation of security may be caused by the refusal of the person applying for its introduction. As a rule, such a statement is filed upon changing circumstances that become the basis for the application of security measures.
Another case is the partial satisfaction of the stated requirements. In this case, the issue of maintaining security with respect to the remainder of the claim is decided at the discretion of the judge.
Conclusion
In practice, the question often arises - is it necessary to pay the state fee for interim measures? Code of Civil Procedure does not establish such an obligation.
In conclusion, it should be noted that, regardless of the content of the decision, a person who does not agree with him can challenge it by submitting a private complaint.