The court made a decision in absentia, what to do in such a situation? Today there are many litigation related to breach of debt obligations. Therefore, this topic excites many people. We will try to answer how the cancellation of the court decision in absentia occurs. What you need to know when faced with a similar form of a verdict. But first, what it is.
The concept
An absentee decision is a simplified form of making a court decision, which implies the absence of parties at the meeting. But it is worth noting that this is not a court order, despite the external similarities in the decision-making procedure. The order comes from magistrates, which are lower in hierarchy than district courts, which basically render an absentee court decision. The sample is no different from the usual one, except for the phrase “absentee decision” itself, and the mention that the plaintiff was not against such a form of the verdict.
Terms of delivery
An absentee decision is made only in certain cases:
- The plaintiff himself agreed to this form of the verdict. We will talk about what this threatens him with later.
- The defendant is not present at the meeting, although he was duly warned of the place and time.
- Disputes under consideration must be civil in nature and based on a statement of claim. That is, decisions in criminal and administrative cases cannot be made in absentia.
In which case the decision in absentia is not made
There are certain cases when an absentee court decision cannot be made:
- There are several defendants in the case, and at least one of them appeared in the courtroom.
- The plaintiff is against a similar form of proceedings.
- Claims changed.
Pros and cons of the plaintiff in absentia decision
We have already noted above that a court decision in absentia is taken when the plaintiff is not opposed to such a consideration of cases. But what benefits does he get from this?
The most important thing is a quick decision in his favor. This form assumes that evidence will be provided only by the plaintiff. No arguments or objections from the defendant will follow. As a rule, such decisions are taken immediately, during the first meeting, the claims are satisfied in full.
In addition to the advantages, there are obvious disadvantages for the plaintiff:
- A court decision in absentia may be set aside even after all legal deadlines for appeal.
- The defendant with a competent strategy can drag out all the processes.
- The validity of an absentee court decision comes later than in a similar full-time case.
Entry into Force: Myths and Reality
Some citizens misinterpret the laws. This gives rise to the myth about when the described solutions come into force. According to the Code of Civil Procedure, the verdict is considered final when 30 days have passed since the filing of the cancellation of the decision in absentia. But this action needs to be done only after receiving a civil “sentence” on hand.
Such an interpretation assumes that, running away from official notice, it is possible to postpone entry into legal force at any time. But this theory is shattered about the steadfastness of bailiffs who block bank accounts and seize property.
In fact, the decision in absentia comes into force after the final deadline for the appeal, that is, after 37 days. Seven is given to cancel the absentee decision, 30 to appeal after this deadline. If the debtor nevertheless tried to schedule an in-person court hearing, then in this case 30 days to appeal will begin with a refusal to cancel the absentee decision.
Cancellation Policy
The cancellation of the court decision in absentia occurs through the authority that issued the verdict. There may be certain reasons for this:
- A valid reason for failure to appear: business trip, illness, moving, change of residence, etc.
- Evidence and circumstances, upon presentation of which the verdict may be different: certificates, receipts, indicators of witnesses, etc.
Before canceling the decision, the court will consider all the arguments - whether it is necessary to complete a new procedural action, or is it pointless and you can leave everything unchanged.
Therefore, before you try to cancel, you must consult how best to do it.
Cancellation Sample
After the court receives the application, the cancellation of the court decision in absentia must occur within ten days. A sample submission will look something like this:
In the proceedings of the “Our” district court of “our” region there is a case under the claim of Petrov P.P. to Ivanov I.I. for compensation of 5 (five) thousand rubles. On December 31, 2015, the court issued a decision in absentia on the return of five thousand rubles to P.P. Petrov, payment of fines and penalties in the amount of five hundred rubles, as well as the payment of state duty in the amount of fifteen rubles. The decision was sent to me at the address: Novosibirsk, ul. Street d.1. Failure to appear in court was caused by my business trip to Sakhalin, in support of this I provide a copy of the order from my work, as well as plane tickets confirming my presence there. In order to make a lawful decision, the court will be presented with facts to refute the plaintiff's claim. Namely: a receipt that Petrov P. P. received the necessary amount of debt. In accordance with Art. Art. 237, 242 Code of Civil Procedure of the Russian Federation I ask: To cancel the decision in absentia of December 31, 2015 on the claim of Petrov P. P. and resume the consideration of the case on the merits. Application:
- Flight ticket - flight Novosibirsk - Vladivostok.
- A receipt in the receipt by Petrov P.P. of the required amount of debt .
Appeal against a court decision in absentia
If the court did not satisfy the application for cancellation, then justice will have to be appealed.
An appeal of a court decision in absentia must be carried out through the first instance. The main mistake of people who assert their rights without the participation of professional lawyers is that they file a complaint directly with the appellate court. Of course, according to the civil procedure deadline, they are refused, and the deadline for re-submission is limited to thirty days.
An appeal against a court decision in absentia must be filed through the authority that received it. For example, a city district court passed a verdict. An appeal must be submitted to the Judicial Board of the Regional Court. The complaint must be sent to the same district court. He himself will send all the necessary materials to the regional.
If the court refused to cancel the court decision in absentia, then this should not be challenged on appeal. This simply does not make sense. If the defendant has something to present as evidence that will change the situation in his favor, it is better to send them on appeal, and there to fight for their rights.
Missed deadlines, what to do?
Very often, when issuing an absentee decision, citizens miss all deadlines for appeals. This is due to the fact that they learn about such decisions only from the bailiffs during actions on the writ of execution.
The Supreme Court of the Russian Federation ruled that the validity of the reason for the omission does not cancel the decision in itself. It is necessary to write the relevant application for the restoration of the missed procedural deadlines for filing an application to cancel the absentee decision.
You will have to write simultaneously two statements in one court. One is to restore deadlines for filing, the other is to the process itself, for the sake of which the first was written. You can combine them into one general, but be sure to indicate both.
Then two completely different judicial actions take place. One of them is the restoration of deadlines. If he is not satisfied, then you can forget about the absentee decisions and try to get the right to submit through a private complaint. If the term has been restored, but the verdict has not been canceled, you will have to appeal. But for this, it is also necessary to restore the deadlines for the submission of a new procedural action. Again, two different statements must be brought to the trial court. The first is the appeal, the second is the restoration of the missed deadline for filing. Without these procedures, courts are not allowed to hear cases.
Reasons to restore term
As a rule, the courts often restore the deadline for filing in the following cases:
- Business trip.
- Disease.
- Illiteracy (inability to write and read).
- Another reason that the court found satisfactory.