Let us consider the grounds for applying the procedure in the agro-industrial complex: to leave without consideration one of the results adopted in claims and petitions submitted to the court. Let us examine what the order of application of the law is and what are the consequences for the parties and for the court.
Reasons for applying the procedure
In the agro-industrial complex, abandonment is carried out if there are appropriate reasons. The judge shall render the decision immediately, after its receipt or at the stage of consideration on the merits. The following are the reasons:
- an arbitration, general or arbitration court is already considering a dispute with the same parties on the same occasion and with the same subject of the claim;
- the applicant or plaintiff has not complied with the pre-trial or claim procedure for dispute resolution;
- considering the statement of fact, the judge revealed the existence of a dispute;
- the claim should be considered in bankruptcy proceedings;
- the case is being considered by the arbitration court or an agreement has been concluded on the transfer of the case;
- the application is signed by a person who does not have this right, or the position of the signatory is not indicated;
- the procedure for filing claims for court expenses has been violated;
- the applicant failed to appear in court twice in a row, did not ask to consider the application without him, and the defendant did not want to continue consideration.
The listed reasons are not exhaustive; similar grounds are established by other articles of the code.
The dispute is already under consideration
In the list of grounds for leaving without consideration in the agro-industrial complex - this is the first item. Its essence is that one of the persons mentioned in the lawsuit has already filed an application with the same requirements and reasons for the same persons.
The dispute can be considered both in arbitration, and in the general (district or world court) and in arbitration.
Pre-trial Procedures
The second reason for leaving without consideration in the agro-industrial complex is the lack of information on the implementation of the rules on the pre-trial procedure for the settlement of disputes. How does it look? The claim is sent in free or prescribed form. After receiving a response or the expiration of the allotted time for a response, the right to file a lawsuit or application to the court arises.
Another way is to file a complaint with a higher authority. Whether the complaint is answered or not does not matter. It is important for the court to present postal receipts, inventories and copies of complaints.
The presence of a dispute
In the agro-industrial complex, the abandonment of a claim or application is permitted in fact-finding processes. Their specificity is that the applicant does not initially have a dispute with someone about the subject of the claim. For example, there is a need to legalize ownership of property or to recognize the ownership of a document if error correction is not possible. The judge replaces other authorities that are not able to correct a mistake or provide information.
If it turns out that another person claims the property, the case is terminated. Based on this, the court acknowledges the existence of a dispute between the parties.
Bankruptcy Procedure
According to the rules of the agro-industrial complex, leaving the claim without consideration is mandatory if the interests of the bankrupt creditors are affected. What are you talking about? If a bankruptcy procedure has been launched against the debtor, all claims against it are already considered exclusively within the framework of this process. Other interested persons or creditors, to whom the bankrupt has debts, may join the applicant who filed the lawsuit, the procedure is prescribed by law. Therefore, before filing a lawsuit to recover from a problem defendant, it is worth checking whether the corresponding procedure has been launched against him.
If, on the initiative of a person, the corresponding proceedings have been started, then he can no longer file a new, separate lawsuit related to completely different requirements.
Arbitration agreement
In addition to state arbitration courts, cases are considered by arbitration courts operating on the basis of self-organization of voluntary participation. The plaintiff has the right to bring the counterparty to such a court only on the basis of an agreement on the transfer of the dispute to the arbitration court. The law established two conditions regarding such agreements:
- one of the parties that claimed to have an agreement did so at the first meeting that she attended;
- the contract is valid, has not lost force, it is possible to execute.
The parties are entitled to conclude an arbitration agreement after the opening of the proceedings. It is applicable if a party declares it before the court leaves the deliberation room. Again, the contract must comply with the law, not lose its force and be enforceable at the time of application.
Here, the agribusiness of the Russian Federation leaving without consideration does not make a purely formal procedure. The presence or absence of a document in the case file is not enough, the contract is always studied, the circumstances of its conclusion and other issues are resolved. For example, whether the specified arbitration court is actually authorized to resolve a specific dispute.
Signature Defects
Among the grounds for being left without consideration, the APC of the Russian Federation notes problems with the signature of the applicant. The law lists three flaws:
- lack of a signature at all;
- the application is signed by a person who does not have the right to put it;
- the official position of the person who has signed is not indicated.
The second paragraph applies if the applicant or his representative acts by proxy or, being in a position that does not give appropriate authority. Also, there is no copy of the order for the position or constituent documents confirming the right to put signatures on the application to the court or transfer such powers to third parties.
Mistakes in recovering litigation costs
The fate of legal costs is decided by the court, which makes a decision on the merits. This includes all instances. If for some reason the appeal, cassation or supervision did not allow the claim for the recovery of expenses, the application is submitted to the court considering the case in the first instance.
The Code gives 6 months after the final decision on the case to ask for permission to claim costs. If the deadline is missed, it can be restored. Reasons for skipping should be valid. General rules apply.
According to the agro-industrial complex, the abandonment of the statement of claim without consideration is allowed due to its sending to the wrong court or with a skipping procedural period.
Absenteeism
In the arbitration process, the same principle applies as in the civil. The plaintiff does not appear on call twice and the case is terminated. The court will not close the case if the defendant asks for further consideration. However, this does not occur. Evidence of due notice is required, otherwise the court of second instance will reverse the decision of the first. The proceedings continue when the plaintiff asks the court to consider the materials without his participation or asks to adjourn the proceedings for good reason.
Does it concern only claims
The code explicitly indicates the application of the list to claims. At the same time, the provisions governing the process of consideration of other applications (special proceedings against officials, their actions and acts, etc.) refer to the general rules for filing a claim. Therefore, the above affects the initiators of other statements.
Procedure
According to the APC of the Russian Federation, leaving the application without consideration is the prerogative of the judge. The law does not prohibit the other party or third party from making a request to leave the lawsuit or application without consideration. How is all this done? By writing and submitting a request to leave the application without consideration.APK describes the following methods:
- oral statement with a note in the minutes of the meeting;
- a written statement (including in electronic form).
The second method is considered more reliable: the document is fixed in the office system.
The judge decides the fate of the lawsuit, however, fixing the party to the action will force him to act more under the law.
How to write a statement
Sample application structure:
- name of court;
- initials of the judge, his last name;
- case number;
- information about the participants in the process (copied from the materials of the claim);
- reasons to consider an application filed with violations of the law, it is advisable to make a reference to the rule of law and describe what the violation consists of;
- Signature and filing date.
- an inventory of the documents to which the applicant refers.
Attached is a copy of a power of attorney or other document giving the right to conduct business. The number of copies is determined by the number of participants in the process. Will it be possible to leave the application without consideration? APC RF obliges the court to give an answer to the statement; it cannot be ignored. But whether it will be positive is unknown.
The fact of filing such an application at the beginning of the review, even if the result is negative, will give rise to higher authorities to speak about violations committed during the initial consideration of the case.
Judge's actions
Obvious violations are simple. There is no information about sending copies of documents to the other party, and the judge immediately makes a decision. Another option is also likely: the judge will open the proceedings and hold at least one meeting in which the circumstances clarifying the obligation to close the case will be clarified.
What is a procedure?
What is the procedure for leaving a claim without consideration? APK RF says the following:
- a court ruling is issued;
- A copy is sent to parties and third parties.
The determination indicates the reasons and clarifies the right to apply again after eliminating the deficiencies. The law allows you to appeal this decision of a judge.
Effects
The decision not to consider the claim or application on the merits leads to the resumption of the limitation period for applying for judicial protection. If the documents were submitted at the stage of its completion, there will no longer be a new opportunity to sue them. Then the only way out is to appeal.
What are the other consequences of being left without consideration? The agro-industrial complex allows to apply again. The judge will accept him again and examine on the merits. If the question of the statute of limitations is not raised, in practice it is easier to submit a new application. Writing, filing and proceeding on an appeal will take longer than a new appeal. If the party wishes to appeal the determination, it has a month. It is counted from the moment of removal, not receipt.
Does the case immediately cease
It would seem that in the agro-industrial complex, the abandonment of a case is provided for in relation to claims or applications that have only been submitted and have not been examined on the merits. However, judicial practice shows otherwise. In one of the cases that reached the Supreme Court, it was decided to leave the lawsuit without consideration. The reason is that the plaintiff has not complied with the claims for the dispute resolution procedure.
The consequences do not occur if the parties did not announce the arbitration agreement in time, the judge did not dismiss the case after the plaintiff failed to appear again, who then arrived at the third meeting.
If the information on the position of the claimant is clarified and other inaccuracies are eliminated, it is unlikely that it will be possible to insist on the closure of the case in the second instance. At the same time, much is determined by the position of a particular judge and the practice of application prevailing in the region.
Powers of higher authorities
Does the AIC allow the appeal to be left without consideration? The code allows the following options:
- the complaint is not satisfied - the court does not agree with it;
- the court partially satisfies the complaint - the decision is canceled or partially changed;
- the decision is canceled in part or in full, and the case is dismissed or the application is left without consideration.
The cassation and supervisory authorities have similar powers. The Supreme Court is no exception.
The difference between a statement and a complaint
Statement of claim - a document containing the requirements of the plaintiff. Complaint - a statement by a party (plaintiff, defendant, third party) about the violations committed and a request to cancel the decision in whole or in part.
In preparation for the consideration of a case, a judge has the right to leave the complaint without consideration or to return it if there are grounds. These actions relate specifically to the complaint, and not to the initial statement on which the trial is based.
If the complaint is accepted, the court will make one of the possible decisions. Moreover, leaving without consideration will affect the lawsuit, and not the complaint. Although the previous code provided for the right to leave the complaint without consideration.
Execution of judges' decisions
What to do if the grounds for leaving the claim without consideration are identified. The agro-industrial complex, irrespective of the instance reviewing the case, obliges to annul all previously made decisions. Exceptions apply to decisions to leave a claim without consideration if it has already been accepted earlier. Otherwise, the higher authority directly makes a determination. The parties shall return to their original position, which existed prior to the adoption of a substantive decision by the courts.
Features of the judicial act
When making the determination, the content requirements must be observed:
- date and location of adoption;
- name of the arbitral tribunal;
- surnames and initials of judges and the secretary who kept the record of the meeting;
- the name of the case and its number;
- information about the persons participating in the case (full name, people), entrepreneurs indicate registration numbers, full name of organizations;
- the reasons why the court decided to leave the application without consideration;
- links to regulations, documents and arguments of the parties;
- a decision to leave the application without consideration indicating the case number;
- the procedure and deadlines for sending a complaint on determination;
- Signature of judge and clerk.
The definition is drawn up on one separate or on several sheets.
Will the fee be returned
One of the plaintiff's obligations is to pay a fee. Its size is sometimes impressive due to the size of the requirements or due to the person who handled them. Organizations have to pay a fee in an increased amount. The agro-industrial complex refers in the issue of return to the norms of the Tax Code. According to its provisions, leaving the application without consideration gives the right to ask the court to return the fee.
If the plaintiff plans to submit an application again, the fact of payment matters at least 3 years. If it is submitted later, you will have to pay again.
The Tax Code requires contacting the authority for whose actions payment was made. In our case, the arbitration court, which terminated the proceedings. His judge decides on the refund of a fee with which the petitioner is already applying to the treasury.
What is confused
The agro-industrial complex also mentions the abandonment of the motion and the return of the claim to the plaintiff. The first option - means the suspension of the application and the provision of time to eliminate errors made during the filing.
The return of the claim is permitted on the grounds specified in the code. In terms of meaning and consequences, it is similar to leaving without consideration, but there are other reasons. The rest also has the right to file a new application and return the fee.
Finally
In the APK of the Russian Federation, a claim can be left without consideration in a number of situations. The court does not have the right to go beyond this list. The application of the rule of law is the responsibility of the court; it has no choice. If for some reason the application is examined on the merits, and the decision is reviewed by a higher authority, it will be canceled and the application will be left without consideration.
The party or party to the case has the right to file a petition so that the court closes the case on appropriate grounds.In contrast to the refusal to open proceedings, the plaintiff, after being left without consideration, has the right to appeal to the court again with a similar statement or lawsuit. In addition, he has the right to return the fee or use the receipt for a new appeal within 3 years.
