During the trial, the plaintiff may need to change their own requirements. Perhaps he mistakenly put forward them or there is no evidence of all the facts stated in the statement.
The question arises, what can be done in such a situation, is it possible to make clarifications or to make a change in the lawsuit in the civil process? This question can be answered unequivocally - yes. The plaintiff has a right, fixed at the level of regulatory acts, which allows him to change, clarify, abandon his claims.
Legislative framework
The right to amend a claim in a civil proceeding is enshrined in article 39 of the Code of Civil Procedure. According to the provisions of which, the plaintiff has the right to increase or decrease his claims, change the subject or grounds of the application. May even refuse a lawsuit.
The defendant, in turn, has the right to recognize all the claims put forward in the application. The parties to the proceedings have the right to conclude a settlement agreement. The judge will not accept any changes if they violate the interests of third parties or contradict the requirements of the current legislation.
Changes in the legal nature of the statement
If we are talking about changing the subject of the lawsuit in a civil proceeding, then the grounds are no longer subject to adjustment. I mean, if you change both, then in fact you get a new lawsuit. Therefore, such an application can only be submitted on an independent basis.
The subject of the claims is the right of the plaintiff, which has been violated and is subject to protection. For example, a job application. In fact, we are talking about adjusting the substantive requirements.
Grounds are circumstances that form the basis of claims. For example, a statement on the eviction of a temporary resident. The plaintiff, when describing the circumstances, may misinterpret them and change this part of the application during the trial.
The right to change the basis of the claim in the civil process, as well as the subject, is reserved exclusively for the plaintiff. If it becomes necessary to adjust the requirements, the plaintiff may submit to the judge a request to change the grounds or subject of the claim or submit an application for clarification of the claim.
The consequences of changing the subject of the claim in the civil process and the grounds are different, therefore, Article 39 of the Code of Civil Procedure prohibits changing them at the same time, in order to prevent the replacement of some claims with others that have nothing in common with each other.
Requirements Size Adjustment
A change in the amount of the claim in a civil proceeding implies that the plaintiff has the right to both reduce it and increase it. If we are talking about increasing the size of the requirements, then you will have to pay a state fee. In the event of a reduction, the plaintiff can count on the judge to oblige the defendant to reimburse all expenses for the trial or for a partial refund of the excessively paid fee.
Many experts in the field of jurisprudence consider the change in the price of a lawsuit in a civil process as a clarification. For example, if the statement calculated the penalty and fines at the time of filing the claim, and in the course of the proceedings, the plaintiff decided to adjust them at the time the decision is made, then such an adjustment can be regarded as a clarification, but not a change.
In some cases, an adjustment is made if the plaintiff finds errors in his own calculations or the defendant partially satisfied the requirements, then the amount of the application is reduced.
Disclaimer
The plaintiff has the right to full or partial refusal of his own claims. Such a need may arise when the plaintiff’s claims are fully satisfied by the defendant or the first one realizes that it is inappropriate to sue the latter in other situations.
If we are talking about a complete refusal, then in the end the trial will be terminated. In this case, the plaintiff must understand that in the future he will not be able to appeal to the same defendant and with the same requirements. Therefore, the adoption of such a decision should be approached carefully.
Does not allow refusal to be made with a specific condition that will be put forward to the defendant or a third party. Such a refusal by the court will be regarded as void. Refusing one’s requirements is possible only at the stage while the case is being considered. After the final decision is made by the judge, refusal is not allowed.
How and how many times?
An application for changing a claim in a civil procedure may be submitted an unlimited number of times. However, article 35 of the Code of Civil Procedure provides that parties to a process may only exercise their rights in good faith. If abused, the judge may even punish him with a fine, although no sanctions are provided for such actions. Indeed, in essence, the abuse of the rights of one side of the process creates certain difficulties for the other and violates its rights.
How can I apply?
Most often, changes to claims are made through a written statement. However, it is allowed to express their new claims in court, to substantiate them, that is, orally. The judge logs them. But if we are talking about changing the price of the claim, it is still better to file a written petition, with a new calculation.
Application Requirements
A change in a claim in a civil proceeding should be carried out taking into account the requirements of Article 131 of the Code of Civil Procedure. It provides requirements for the application, which should contain:
- information about the court to which the appeal is submitted;
- information about the parties to the dispute, including their contact details;
- business details;
- introduction, with a summary of previously stated requirements;
- the main part - circumstances and grounds that make it possible to change the essence of the dispute;
- the operative part, that is, a brief claim by the plaintiff, with obligatory references to the norms of the current legislation.
At the end of the document is signed, the date of the application or application.
In addition to a written statement of the essence of the changes, each stated fact must be supported by documentary evidence that is attached to the application.
National tax
Changing a claim in a civil proceeding does not entail the obligation of the applicant to pay the state fee, if this does not apply to material requirements.
If, however, the plaintiff increases his claims, then according to the requirements of subparagraph 10 of paragraph 1 of Article 333.20 of the Tax Code, the missing amount of the state duty will have to be paid. However, at the time of filing the application, one may not be in a hurry, since the Tax Code prescribes that the surcharge must be made no later than 10 days from the moment the court decision comes into force. Therefore, when drawing up a statement to the court it is advisable to refer to paragraphs. 2 p. 1 Article 333.18 of the Tax Code and make an additional payment after the decision by the court.
Conciliation procedure
In the trial, there is such a thing as a settlement. This is a conciliation procedure that allows you to resolve the dispute peacefully. Despite the different legal nature of changing a lawsuit in a civil proceeding and signing a settlement agreement, they nevertheless have a lot of common features.
For example, the recognition or rejection of the claim leads to the termination of the trial, as well as the conciliation procedure. The legislation provides for the same conditions for approving an agreement and accepting or rejecting a claim.
In both cases, dispute resolution through these procedures is not allowed if they entail a violation of the rights of third parties, affect their interests or run counter to the letter of the law. In fact, when a claim is recognized, the defendant expresses his own will, when the claim is rejected, the plaintiff, and when a settlement is concluded, both parties make a mutual decision.
An amicable agreement can be concluded both orally and in writing, the main thing is that it be approved by the court. In this case, the conditions agreed upon by the parties, the judge is not entitled to change. After the approval of the agreement, the parties are deprived of the right to re-appeal to the court on the same essence of the dispute and on the same parties.
What is recognition?
Recognition of the requirements set forth in the statement of claim is the consent of the defendant with the legality, validity of these requirements. The defendant has the right to both partially and fully recognize the lawsuit.
In legal practice, there is also the concept of recognition of a fact, which can be both on behalf of the defendant and on behalf of the plaintiff. In fact, recognition of the fact exempts the other side from further proof of its position. However, the judge may not accept such a confession if he suspects that the party making it is trying to hide the actual circumstances of the case or has done so under pressure or is mistaken. The simplest example is if the defendant agrees with the amount of the debt, but does not agree with its return, since the statute of limitations has expired.
After the recognition of the claim by the defendant, the court makes a decision and refers to this recognition as the basis for satisfying the claims. Without fail, before making a decision, the judge must verify the legality of such a decision by the defendant.
Things to remember
In the case of filing an application to change the subject or the basis of the requirements, to change them, the time for consideration of the case begins to be re-counted from the moment the corresponding appeal was submitted. The right to make changes is the exclusive right of the plaintiff and is an administrative action. Only the defendant, but not the plaintiff and other persons involved in the process, can recognize the claims. In turn, an amicable agreement is the expression of the will of both parties.
The plaintiff has the right to repeatedly change his claims, however, it is impossible to change the grounds and subject at the same time, as a new lawsuit will be received. If the plaintiff renounces his claim, then it is accepted as unconditional and deprives the applicant of the right to re-appeal to the court on the same grounds and to the same person.