Between the participants of the civil turnover, disputes often arise, the resolution of which is possible only in court. The dissatisfied party has the right to file a claim. For it to be satisfied, it is necessary not only to correctly formulate the subject, but also to determine the basis of the claim .
Statement Elements
There are only 2 of them: the subject and the basis of the claim. These elements characterize the content and legal nature of the application. In the procedural sense, they are essential for determining the identity of requirements. In simple words, the subject and basis of the claim are the means of its individualization. One statement differs from another precisely in these elements.
What is the basis of the claim?
For a correct understanding of the concept, it is necessary to turn to procedural legislation. Requirements in civil proceedings are presented according to the rules established in the Code of Civil Procedure of the Russian Federation.
The claim shall be deemed to be based on circumstances and facts from which the stated claim follows. This understanding follows from the provisions of Article 131 of the Code of Civil Procedure.
When formulating requirements for the defendant , the applicant must invoke circumstances of legal significance. That is, these should be such facts with which the legislation connects the termination, amendment or occurrence of obligations and rights. In addition, the person concerned must provide evidence of the basis of the claim .
Classification
The circumstances on which the applicant bases his claims are of 3 types:
- Legal workers. From them the plaintiff's claim follows directly. For example, according to the statement of the creditor on foreclosure on the pledged thing, the basis is the availability of credit and collateral agreements, their proper content, the observed form of agreements, confirmation of the fulfillment by the creditor of his obligations.
- Passive / active legitimation. In the course of legitimization, the procedural position of the parties is determined. In this case, the facts are distinguished, which testify to the connection of the claim with the specific subject who claimed them and with the defendant. According to the results of the analysis, the institution of replacing the defendant is applied or not applied.
- The facts of the reason for applying. These circumstances indicate the time has come to appeal to the court. For example, at the request for foreclosure on the pledged thing, the reason is the debtor’s refusal to return the funds received from the creditor or the delay in the performance of the obligation.
Thus, before filing a lawsuit , the person concerned must collect the necessary evidence to support the validity of the claims. They are precisely the facts from which the requirements arise.
Important point
Traditionally, subjective law is based not on one, but on several legal facts underlying the claim. This means that the applicant within the civil process, which is adversarial in content and form, must cite various facts proving the validity of the claims. Such an obligation is assigned to him by force of law. The relevant provision is enshrined in sub. 5 2 points with t. 131 GPK .
Difficulty compiling requirements
In practice, problems usually arise when circumstances are brought into line with norms that include relatively specific and uncertain elements. In such cases, the court and participants in the civil turnover are given the opportunity to determine the legal significance of various facts. Such situations take place, for example, when a claim refers to circumstances that indicate a defendant’s abuse of his rights, dishonesty of persons, and so on.
Actual and legal basis
Such a separation of the circumstances referred to by the applicant is of great practical importance.
The factual basis is a complex of legal facts, and legal (legal) is an indication of specific rules of law that, according to the plaintiff, were violated. It should be said that, despite the fact that part 3 of Art. 131 of the Code of Civil Procedure makes it obligatory to provide references to specific legal provisions only to the prosecutor, now all applicants need to do this, since the burden of proof lies with them.
The plaintiff must determine the specific regulatory basis of the claim. References to the law, the Constitution, the Code as a whole will not be enough. For example, a requirement to declare a transaction invalid may be declared for various reasons provided for in Articles 168-179 of the Civil Code. The plaintiff needs to determine a specific rate corresponding to the disputed transaction.
Award Claims
These statements are also called executive. The subject of any claim for award is related to the compulsory or voluntary fulfillment of the duty of the defendant, confirmed by the court. Simply put, the means of protecting interests in such statements are aimed at forcing the defendant to take certain actions in favor of the applicant or to refrain from their implementation.
The trial of such claims always ends with enforcement proceedings. Let's look at a few examples.
The application for the claim of housing from illegal possession
Such a claim is called vindication. Satisfying the requirements entails, as a rule, the need for amendments to the Unified State Register of Legal Entities, eviction of the defendant from the premises, as well as deregistration. In order for all these consequences to occur, they must be declared in a lawsuit.
As practice shows, this category of case is considered the most difficult to consider. At the time, such disputes were very common in connection with frequent cases of apartment fraud.
Nevertheless, judicial practice in such cases cannot be called fully established at present. There are cases when fraudsters, using a fake power of attorney or misleading the owner, sell the property to a third party, and then the property is resold several times. As a result, the third buyer and the following after him are bona fide purchasers of property. Accordingly, it is rather difficult to recover an object from their possession on the basis of the provisions of article 302 of the Civil Code.
The requirement to bring the room in its original condition
Such a statement is aimed at restoring the situation that took place before the violation of rights. Claims of this kind are presented in the case when the tenant of the premises carries out its inseparable improvements, redevelopment, reconstruction without agreement with the rightful owner.
It is worth saying that the plaintiff may be denied satisfaction of the requirements. For example, the court has the right to decide that the premises can remain in an altered state if the interests and rights of citizens are not violated, and there is no threat to their life / health (Article 29 of the LC).
Saving a room in a modified form
Such a claim, as a rule, is claimed as counterclaim to the requirements described above. The basis is the provisions of article 29 of the LC.
It is necessary to take into account that, due to the fact that the disposition of the norm does not imply that the rules on reorganization / redevelopment relate to only one room (apartment), the term "residential premises" is interpreted in a broad sense. In other words, article 29 can be applied to 2 living spaces (apartments).
A significant legal fact that impedes the preservation of an object in a rearranged / re-planned state is a violation of the interests and rights of citizens or the creation of a threat of their violation.
Change requirements
The legislation provides for the ability to change / clarify the subject or basis of the application. Simultaneous adjustment of both the subject and the basis is not allowed. Otherwise, a new lawsuit must be filed.
If the basis of the claim is changed, the court may revise the rules related to the dispute. Accordingly, the plaintiff may be required to further substantiate the requirements.
Base change
It involves replacing the circumstances described in the initial requirement with new facts, indicating additional information, excluding part of the facts while keeping the subject of the application unchanged.
Not every plaintiff is well versed in the rule of law, the procedural nuances of legal proceedings. Accordingly, in practice, situations often arise when, during the proceedings, the applicant understands that the circumstances were not completely formulated by him. In such cases, there is a need to change the basis of the claim. For example, the subject first indicated that the defendant violated the terms of the contract, and then referred to unjust enrichment.
What is not a change in the basis of the claim?
Not in all cases, a change in the position of the applicant can be regarded as a change in the circumstances on which he bases his claims. For example:
- The provision of additional information as evidence regarding the facts stated earlier does not affect the basis or subject of the statement.
- The addition / amendment of the regulatory justification also does not change the content of the claims and circumstances. This is due to the fact that the court is not connected with the legal qualifications proposed by the plaintiff.
The stated requirements may be reduced / increased or clarified in connection with a change in calculations, an increase in the duration of debt, etc. These circumstances also do not change the basis or subject of the claims.