The statement of claim in both the arbitration and the civil proceedings has an important procedural value in protecting the violated right and contesting something. The claim must be made in compliance with certain requirements. Their absence provides a basis for refusal of his admission, depriving him of legal force. That's about the procedure for filing claims and claims today and we'll talk.
Arbitration Claim Form
Samples of claims to the arbitration court can always be found in the public domain, but the rules for their preparation should still be known:
- the claim is made in writing;
- the document must be signed by the plaintiff or his legal representative;
- the availability of information on which court the application is submitted;
- full details of the plaintiff and defendant, including phone numbers;
- the claim must contain requirements, legal grounds on which the entire statement is based;
- evidence base underlying the plaintiff's claims;
- Settlements on the recoverable amount or the amount to be disputed;
- price of the claim to be evaluated;
- an indication of whether a pre-trial dispute settlement procedure has been carried out if such a measure is mandatory for a specific type of statement of claim;
- other measures that the plaintiff took to resolve the dispute.
The procedure for filing a claim requires the plaintiff's right to additional motions in the statement of claim. He may ask the court to request additional evidence from the defendant.
Not the last place in the application is occupied by the application, that is, documentary evidence of the plaintiff's claims. The annexes to the statement of claim must contain documents confirming the violation of the rights of the plaintiff, notifications of the sending of certain requests and claims to third parties, the defendant, confirmation of payment. If the plaintiff has the right to benefits when paying the fee for filing a statement of claim, then you will also need to attach the relevant evidence. Copies of documents confirming state registration must be attached to the claim from the legal entity. Filing an application by an authorized person involves confirmation of the authority thereof. This may be a power of attorney or minutes of the meeting of shareholders.
Sample claim to the arbitration court
It should be understood that a sample application is just general drawing up rules. Much depends on the accuracy of the data presented. In fact, a lawsuit is an outward expression of the right to protect one’s rights.
Court of Arbitration in the Stavropol Territory Zip, address: Defendant: Company name: USR code: Address, details: Contact number: Claimant: Company name: USR code: Address, details: Contact number: STATEMENT OF CLAIM recognition of a transaction invalid due to its nullity The essence of the dispute with links to articles of specific legislative acts and codes, which, according to the plaintiff, were violated. Guided by Article.Article of Civil Procedure or Arbitration Procedure Code of the Russian Federation , I BEG Recognize the contract of "__" ____ year as invalid and apply sanctions to the defendant, namely: Applications: 1. Copy of the contract. 2. Documents confirming the invalidity of the transaction. 3. A copy of the document confirming the transfer of a copy of the claim to the defendant. 4. Receipt of payment. 5. Power of attorney or protocol (if the application is submitted by an authorized person). 6. Other documents giving the opportunity to confirm the fact of invalidity of the transaction. Signature seal date |
Consequences that may arise if the procedure for presenting an application is not followed
The procedure for filing a lawsuit is a strict observance of formalities, therefore, before taking a case into proceedings, the judge takes a number of measures:
- checks the statement of claim for compliance with the requirements of the legislation in terms of content and form;
- establishes the fact of the availability of all necessary documents for consideration of the claim;
- checks whether there are enough legally significant facts to be able to start proceedings on the statement of claim.
If deficiencies in the preparation of the claim are revealed and / or not all required documents are attached, the judge has the right:
- leave motion unmanned;
- return the statement of claim.
Leaving the suit without motion
Leaving a lawsuit without motion implies an appropriate determination. The following information is reflected in the document:
- motivated grounds for such a decision;
- the term in which the plaintiff must meet in order to eliminate all circumstances that impede the opening of the process.
The timing
The determination is sent to the plaintiff immediately the next day after its adoption. Legislation does not explicitly prescribe what time frames can be set by a court, but according to general rules it is considered that such a time should be reasonable. That is, during this time, the plaintiff will indeed be able to collect all the necessary documents. If the plaintiff eliminated all the shortcomings, the court shall resume consideration of the statement of claim, and the date of filing the claim shall be the first date of submission of the statement to the court.
The procedure for filing a claim also provides for cases when the plaintiff does not fit into the time period specified in the court ruling, in which case the application is sent back to the applicant, including all applications.
Return of claim
The return of the claim may be if leaving the application without motion does not make sense, since the plaintiff will not be able to present the documents that are necessary for opening and considering the case. In this case, the plaintiff retains the right to re-appeal to the arbitration court after removing the obstacles that arose for the first time on the date of filing the application.
The court may return the application in the following cases:
- it is not subject to the court in which the lawsuit is filed;
- before the start of the proceedings, the plaintiff filed a motion to return the application;
- if the obstacles that prevented the opening of production are not eliminated;
- rejected application for a reduction in size or deferral of payment of state duty.
In this case, the procedure for filing a claim provides for the issuance of an appropriate determination by a judge with the following information:
- circumstances that prevented the adoption of the claim in proceedings are prescribed;
- determines the procedure for the return of state duties from the budget.
The determination must be sent to the plaintiff the day after the adoption. This decision may be appealed by the plaintiff.
Prerequisites for the right to sue
The procedure for filing a lawsuit in a civil proceeding, as well as in an arbitration proceeding, involves the exercise of its procedural right to judicial protection. General prerequisites for bringing to court:
- full legal capacity of the plaintiff;
- jurisdiction;
- jurisdiction of the case.
There should be no litigation in other courts, including arbitration, between the same parties and with the same subject of claim under the Code of Civil Procedure or agro-industrial complex that have already been considered, are in the process of consideration, have ended in proceedings or an amicable agreement has been concluded. You can appeal to the arbitration court on the same dispute and with the same parties to the proceedings if the arbitrator refused to issue a writ of execution.
Special Prerequisites
A special prerequisite for the right to sue is the mandatory observance of pre-trial settlement of the dispute, if this is expressly provided for by law. Unclaimed claim to the defendant does not entail the absence of the right to sue. This only makes it possible, if it is left without movement, to eliminate this circumstance by presenting a claim to the defendant. After this, the plaintiff may again appeal to the arbitration court.
Current legislation provides for special relationships in the case of cargo transportation by any means of transport. If the goods have not been received, or received not within the time period specified by the contract, or damaged, the consignee is required to adhere to the procedure for filing a claim, and the lawsuit is filed with the court only after the pre-trial settlement of the dispute. Otherwise, he will not be accepted for production, and the plaintiff will be given time to submit a claim to the defendant.
Differences between civil and arbitration processes
Any court stands guard over the protection of the rights of citizens and legal entities. Depending on the subjective composition and type of disputed relationships with different disputes, it is necessary to apply to different courts. The arbitration process considers disputes that relate to economic and business activities. The civil process is matters related to labor, family, housing issues, that is, general jurisdiction.
The procedure for filing a lawsuit in a civil proceeding is somewhat different from filing such an application with an arbitration court. In addition, in arbitration proceedings, it is the plaintiff who is obliged to prove the defendant's guilt. In civil proceedings, the opposite is true - the defendant must prove that he is innocent and did not violate the rights of the plaintiff. The order of evidence in the courts is also different. A judge in a civil proceeding considers all evidence, including verbal evidence from witnesses. The arbitration process is actually a “paper” process, where you can prove your case only by providing relevant documents.
In a civil proceeding it is not difficult to file a counterclaim. The procedure for filing a counterclaim in the arbitration process is a rather complicated task, practically impossible. It should be noted that the agro-industrial complex provides for a very short time for filing a counterclaim, therefore, in most cases, it is submitted at the preliminary hearing. This is not the case in the civil process, so counterclaims are filed at almost every court hearing.
Summary
Summarizing the above, it should be noted that to submit an application, only samples of statements of claim to the arbitration court downloaded on the Internet will not be enough. Here you need to thoroughly approach this issue. The rules for filing a lawsuit in the prescribed manner are the basis for a positive decision in a dispute. Arbitration is one of the most difficult lawsuits, therefore the applicant’s chances are always higher if he turns to a specialist with in-depth knowledge in the field of economic disputes.