Art. 122 Code of Civil Procedure of the Russian Federation contains a list of grounds for the recovery of funds or the recovery of property by obtaining a court order. What is its feature and how it is applied in practice, we will consider further in the article.
The concept of a court order
An order means a court decision, which is made on the basis of an application and documents provided by the applicant. The judge makes a decision based only on the materials received. He is not entitled to claim anything on his own initiative. A court session is not held, and the decision is made without any participation of the parties.
The study of articles of art. 121-122 Code of Civil Procedure of the Russian Federation in a complex helps to understand what a court order is and what is its significance. Attention should be paid to its peculiarity - it is both a judicial act and an executive document, which saves the applicant from wasting time on obtaining a writ of execution.
The value of the list of requirements
An application for a court order is mandatory, otherwise the applicant will not be able to file a claim in the future. It doesn’t matter how appropriate it is to seek an order. Having no information that the plaintiff had previously applied for an order, the court will return the claim.
Art. 122 Code of Civil Procedure of the Russian Federation is a closed list, in addition, Art. 121 limits its application to applications where the valuation of the disputed property or the value of the amount claimed exceeds 500 thousand rubles.
The closeness of the list is also indicated by the lack of wording about other requirements.
Grounds for application
A statement is made either by the owner of the movable property, or by a creditor with the right to claim money. The basis for the order is:
- notarized or written transaction;
- collection of alimony in the absence of a dispute about motherhood or fatherhood;
- collection of funds accrued to the employee (salary, compensation, other payments, according to labor legislation);
- debt collection for housing and communal services;
- collection of arrears of assessed contributions or payments of members of a cooperative or HOA;
- protest of a bill imposed by a notary on non-payment, non-acceptance and non-dating of acceptance.
Thus, under the action of Art. 122 Code of Civil Procedure of the Russian Federation gets a significant amount of civil cases.
Transaction Requirements
We are talking, as a rule, about cars and vehicles subject to registration, about money (loans, credit agreements, the right to assign claims, etc.).
More often, obligations of this kind arise during simple transactions, however, some participants in the civil turnover prefer to assure their will by a notary. It is common to collect monetary debt by banks in an orderly manner.
Registration of the transaction should not cause doubts in its validity or in the fact of its completion.
Alimony Application
Art. 122 Code of Civil Procedure of the Russian Federation also includes cases of collection of payments for children in the absence of a dispute about who the mother or father is. In this case, it is enough to attach a copy of the birth certificate to the application.
If the application concerns the maintenance of parents or adult children, the dispute is resolved in a lawsuit. If there is no data on the payer as a parent, then a lawsuit is filed to establish kinship. A claim for alimony may be combined with it. Having achieved recognition of paternity or motherhood, you can only then submit an application for an order.
Recovery of payments, according to TC
The employee, as a less protected party, is given the privilege in a simplified manner to receive the due payments through the court. Any order provided by labor law is subject to an order. The only condition is that the employee must prove the fact of their accrual or official recognition. For this, payroll and other accounting documents are provided.
Art. 122 of the Code of Civil Procedure of the Russian Federation with comments offers different options for confirming accruals, it is another matter that judges treat their assessment with varying degrees of severity.
Debt collection in housing and communal services
Art. 122 Code of Civil Procedure of the Russian Federation and the court order are the most popular among organizations providing housing and communal services.
Applications are submitted regarding debts for payment of electricity, heating, water supply and sanitation, as well as the maintenance of the common property of the house. A significant part of the statements suffers from groundlessness due to the lack of proper documents, but more often than not they come into force due to the illiteracy of citizens and their unwillingness to deal with paper issues. A rare judge thoroughly versed in the legislation of the housing and communal services.
A separate line is the mandatory payments by members of the HOA or the owners of an apartment building, combined into a serving cooperative. The introduction of a clause on contributions and payments to the HOA is connected with the desire of the legislator to insure the associations of tenants. But in practice, all the payments they establish are connected in one way or another with the provision of housing services. From a practical point of view, this rule is not entirely logical.
Bill of exchange
It is a security with a whole list of details. I must say that there are also many bills. However, the refusal to carry out operations on bills, confirmed by a notary, gives the injured party the right to apply for monetary compensation.
The comments to this paragraph refer to legislation on promissory notes.
Submission procedure
The application is sent to the court at the place of residence or location of the defendant.
The peculiarity of the court order is the payment of 50% of the state duty of the amount that would be paid when filing a lawsuit. If the order is refused or it was canceled, when filing a claim, the payment made earlier for issuing the order shall be taken into account.
The content of the order looks like this:
- name of court;
- information about the applicant (full name of the individual or information about the organization from the register of legal entities), location or residence;
- information about the debtor (name of the debtor of the citizen or information from the register of legal entities), location or residence;
- circumstances justifying the requirements;
- claims for the recovery or transfer of property;
- list of supporting documents;
- valuation of claimed property;
- applicant's signature, filing date;
- copy of the representative's power of attorney, his signature and date of filing.
The number of copies should correspond to the number of debtors and one set for the court.
The listed provisions of Art. 122-124 Code of Civil Procedure of the Russian Federation are important, since knowledge only about the grounds for issuing an order will not help without understanding the procedure.