Upon receipt of the second copy of the statement by the respondent, he has an obligation to submit a review. In article 131 of the APC of the RF, it is an obligation, not a right, that is fixed. Such a norm is prescribed in order to stimulate the defendant to active defense and reduce financial losses.
General rules
Despite the fact that the defendant has the obligation to provide feedback on the statement of claim, nevertheless, for its absence, no sanctions are provided for at the level of legislation, they can be imposed only by court order. In fact, protecting one’s own interests is a right. In extreme cases, the judge may impose such an obligation and indicate this in his ruling.
If the defendant neglects to file an objection, then the case will be considered on the basis of the evidence already available. Although this does not mean at all that a decision will be made in favor of the plaintiff.
The absence of a response to the statement of claim to the arbitration court cannot be compensated for by the participation of the representative of the defendant in the meetings, especially when it comes to simplified proceedings.
Distinctive features
Quite a few practicing lawyers confuse two concepts: “recall” and “objection”. Indeed, at first glance it may seem that there are practically no differences. Nevertheless, the recall is peaceful, the defendant may even partially admit his guilt, but there may be a conflict in such a document. As a rule, in such a document the defendant clarifies more the reasons that led to the situation in which he had to go to court to resolve the dispute to the plaintiff.
Objections are actually facts that should convince the judge and the parties to the process that the defendant is right.
On the other hand, there is no big procedural difference in these two concepts, but nevertheless they should be separated.
Content
What is a review? The main purpose of such a document is a reasoned refutation of the position of the plaintiff. Ideally, the defendant should criticize every argument and argument of the plaintiff set forth in the lawsuit. To bring their own counter-arguments, which should be supported by real evidence.
It is a review that allows you to apply the principle of competition in practice.
Document Requirements
A sample response to a statement of claim to an arbitration court is not provided for by applicable law, however, it should be compiled in compliance with the following requirements:
- name of the court, address to which the appeal is submitted;
- case number;
- details of the parties (plaintiff and defendant);
- objections, with reference to evidence and regulations; list of attached documents;
- date of compilation, signature of the defendant (agent), seal (if any).
If the defendant agrees with any of the arguments indicated in the lawsuit, this should be indicated in the text of the document.
It is not recommended in the response to the statement of claim to the arbitration court not to immediately agree with all the plaintiff's arguments. As a rule, judges perceive such a position as an attempt to delay the process of consideration of a case. Practicing lawyers recommend a brief review of the statement of claim on several sheets. Psychologically, the judge after receiving such a document is more favorable to a person who loves brevity and does not pour “water” in the text of the documents.
Other requirements
Recall in the arbitration process must be made in compliance with the general requirements for business documents. Ideally, this should be a document on A4 paper, typed on a computer, with a font of 12. It is not recommended to write a review on more than 5 sheets.
Without fail, the document must contain the details of the case accepted for proceeding in the arbitration court. You can specify them both in the "header" of the document, and under the name of the document.
So that the judge (assistant) does not waste time checking a legal entity or state of emergency, it is best to attach an extract from the register. If a natural person acts as a defendant, as provided for in Article 28 of the APC, then instead of details the passport data of the defendant shall be indicated, indicating the place of registration.
Without fail, the defendant in the text of the review must refer to the regulations or requirements of the contract, when arguing for his position, or other written evidence (letters, complaints, and so on).
It should be remembered that in the arbitration process, testimony does not play a big role, they can only be taken into account.
It is not directly prohibited in the text of the response to the statement of claim to the arbitration court to file petitions. In the agro-industrial complex, such a norm is not directly spelled out, therefore, it is not prohibited.
The text of the document itself should be drawn up in a business style, no emotional statements should be present. A clear logical chain should be established when reading a document. Allocation of the main points to which, in the opinion of the defendant, the judge should pay special attention is allowed. It is best to single out each argument in a separate paragraph.
Applications
According to the norms of the agro-industrial complex of the Russian Federation, a response to a statement of claim, however, like the lawsuit itself, must be based on documentary evidence. This may be correspondence between the parties to the lawsuit, checks or receipts. If a proxy acts on behalf of the defendant, then a power of attorney must be attached.
It is allowed to attach both originals and copies of documents. But it is best to make copies nevertheless certified by the seal or signature of the head (legal representative) of the defendant. However, do not forget to bring the originals of the attached copies of documents with you to the court session.
Consequences of Failure
What is a recall and can a court consider a statement of claim without it? In fact, the court is not obliged to wait for feedback from the defendant, but may consider the case without it.
However, if the claims substantially worsen the interests of the defendant or third parties, the court may oblige the defendant to draw up a recall. If in the court ruling the defendant is assigned such an obligation, then violation of the deadlines will lead to the imposition of certain sanctions. For example, a judge can impose all legal expenses on the defendant, regardless of which decision will be taken as a result, or impose a judicial fine, which is enshrined in part 9 of article 66 of the APC.
The timing
The period in which a review can be submitted is prescribed in the court ruling on the acceptance of the case for proceedings. This is the period during which the parties to the trial will be able to familiarize themselves with the arguments of the defendant. If the deadline for withdrawal of the claim is violated, the defendant will have to explain the reasons for such a delay. In this case, the need to receive answers to special requests may be considered a good reason. It is unlikely that the arguments that the defendant did not receive a copy of the claim will be accepted by the court.
In some cases, judges set a new deadline for giving feedback, and this right is enshrined in the agro-industrial complex.
Referral methods
The most common way to submit feedback is through personal appeal through the registry of the court. The feedback can also be transmitted to other participants in the process through the office or through the postal operator.
Today it is possible to submit feedback via the Internet in the My Arbiter service, which automatically redirects to the State Services website at: https://esia.gosuslugi.ru/idp/rlogin?cc=bp. On the site, simply fill out all the forms and attach the attached document, clearly following the instructions.
Third Party Recall
The current legislation provides for the right to submit feedback from a third party. This is done in order to state the position of a third party in the process and its fixation in the case file. The applicant has the right to object both to all the claims of the plaintiff and to a certain part thereof. According to the provisions of Article 41 of the APC, all participants in the trial have the right to object and present their own evidence, to submit explanations and statements, petitions.
In preparing such a review, one should be guided by the same rules that apply when writing a document on behalf of the defendant. The main thing is that all the arguments presented are reasoned and justified, have references to regulations or provisions of the contract. You can also send feedback through the court’s office, by registered mail or by using the My Arbiter electronic service.
Nuances
Each defendant must remember that even if it immediately seems that it is impossible to win a lawsuit, in fact, everything can turn out in his favor. In no case should you neglect to submit a review. The arbitral tribunal should take the review and objection to the statement of claim seriously, it is best that they be composed of a qualified, experienced lawyer. In any case, including litigation, a defense strategy should first be developed.