In the N-city court
N-region, (*) federal judge Full name (surname and initials) of the defendant (third party) (**) Full name or name of the legal entity (in full)
STATEMENT.
I ask you to consider the civil case under the claim (name) about (about) (indicate the claim stated in the claim, if known) to (full name or name of the legal entity) scheduled for hearing (date and time of hearing of the case) in my absence due to inexpediency (impossibility) of my participation in the court hearing. I completely agree with the plaintiff’s demands, which are indicated in the statement of claim. (***) defendant (third party): ______________ (last name and initials) (signature in blue ink) _»_____»_____ _____g. (see comments by clicking on the “more details” option) _____________________________________________________ (*) If the case is being considered by a magistrate, such an application is submitted to the magistrate. (**) An application for consideration of a case in the absence of a party to the case may be submitted to the court either by the defendant or a third party. The plaintiff cannot submit an application of this kind. The plaintiff may ask the court to postpone the court hearing to another date if for good reason he cannot be present in court. In this case, the plaintiff is obliged, when appearing on another day (rescheduled by the court), to present to the court documents that confirm the impossibility of appearing in court due to objective circumstances. Failure of the plaintiff to appear in court without good reason entails leaving the claim without consideration. Options for notifying the court of the impossibility (unwillingness) to participate in the court hearing by telephone or telegram are not excluded. In the telegram, you can briefly indicate the following text: “I ask you to consider the civil case on the claim of (last name), appointed (date) in my absence. I completely agree with the claim. (***) If the defendant or a third party, with the right to make independent claims, does not agree with the plaintiff’s demands in whole or in part, then in this case his presence in court is desirable, as the court indicates. Or the court makes a decision based on the materials available in the case. The burden of proof lies with the parties to the trial (plaintiff and defendant). Part 1 art. 12 Code of Civil Procedure of the Russian Federation. Implementation of justice on the basis of competition and equality of the parties. 1. Justice in civil cases is carried out on the basis of competition and equality of the parties. Part 1 art. 56 Code of Civil Procedure of the Russian Federation. Burden of proof. 1. Each party must prove the circumstances to which it refers as the basis for its claims and objections, unless otherwise provided by federal law. PS Regardless of gender, you should always write and say: plaintiff or defendant, and not plaintiff, defendant. It’s the same as writing or saying: captain’s wife, general’s wife, judge’s wife, which of course sounds absurd. Finally, a statement of this kind can be sent by fax.
allows the applicant not to take personal participation in the court hearing. How and why petitions to consider a case in the absence of the plaintiff
or the defendant, read this article.
In what cases is a petition required to consider a case in the absence of the plaintiff or defendant?
Part 5 of Article 167 of the Civil Procedure Code and part 2 of Article 156 of the Arbitration Procedure Code of Russia authorize the parties to civil and arbitration proceedings, respectively, not to take personal participation in court proceedings. To do this, it is enough to promptly notify the court of your absence by submitting a petition to consider the case in the absence of the plaintiff
(or the defendant).
At the same time, it is important to know that the failure of the defendant to appear does not introduce any special changes into the course of the trial, since the court has the right to consider the case and make a decision without him in absentia proceedings. However, the situation is completely different with the absence of the plaintiff: he can miss the meeting only once; if he fails to appear again without a good reason, there is a risk of leaving the claim without consideration. That is why it makes sense for the initiator of the litigation to take a timely visit to the place of proceedings with full responsibility.
Petition to consider a case in the absence of the plaintiff - recommendations for drawing up
There is no unified model of such a petition in the legislation, but it is subject to all the requirements for the form of statements of claim set out in Articles 131 of the Civil Procedure Code of the Russian Federation and 125 of the Arbitration Procedure Code of the Russian Federation.
Important: the requirements for form, and not content, should be considered, since in petitions submitted during the trial there is no need to indicate the price of the claim, the requirements, as well as information about the circumstances and the grounds for their occurrence. The form of compilation requires the presence of three main parts: introductory, descriptive and operative.
- Introductory part
In the header of the petition, which, according to the rules of office work, is located in the upper right area of the document, you should indicate the name of the court and the applicant’s details, including contact information.
- Descriptive part
There is no need to state the circumstances and price of the claim here - it is enough to provide the case number, details of the parties and the essence of the proceedings, and then indicate the inability to appear at the trial with an explanation of the reasons.For example: “I can’t appear at the court hearing due to family reasons.”
Here, before moving on to the operative part, a reference to the law is necessary - Article 167 of the Civil Procedure Code or 156 of the Arbitration Procedure Code.
Important: the petition can be filed either for a specific date or for the entire trial - in both cases, an appropriate note should be made in the document.
- The operative part
This part sets out specific requests to the court: in this case, to consider the case in the absence of the applicant, plaintiff, defendant or third party, as well as to send to it a copy of the decision in the case.Like any document, the petition ends with the date of its preparation (must correspond to the date of entry) and the signature of the applicant.
Important: the requirements for drawing up a petition are identical for any of the parties to the trial. A third party can also take advantage of similar recommendations, despite the fact that his failure to appear in court does not entail any procedural consequences.
There are two main parties involved in civil litigation: the plaintiff and the defendant.
Typically, the plaintiff demands the court to restore the rights violated by the defendant or to recover damages caused by the defendant.
The defendant can present his point of view on the situation.
But what to do if the person who is the defendant in the case does not come to court?
The hearing can be held without him.
You just need to submit a timely request to consider the case in the absence of the defendant.
The absence of a defendant is not a reason to stop the process
Civil litigation in court is an adversarial process. Each party can present its data regarding the case under consideration. The court is obliged to take into account the opinions of both participants. The question arises - what to do if the defendant deliberately does not come to the hearing in order to disrupt the established order and prevent the court from fully understanding the case? Even in such situations, the law does not deprive the plaintiff of the right to defend his rights within the legal time frame.
You can appeal to the conscience of the defendant for quite a long time, convincing him to still come to court, or you can consider the case without the defendant, indicating the fact of personal reluctance to be present at the resolution of the dispute. If the methods of persuasion have been exhausted, the defendant categorically does not want to come to court, participate in the process and does not explain his position in any way, there is no point in stopping the clarification of the truth and interrupting the process; you can do without the defendant. This issue is resolved by filing a petition (petition) to consider the case in the absence of the defendant.
Petition from the plaintiff
As mentioned above, the plaintiff may file a petition in the form of a written statement to consider the case in the absence of the defendant. Indicate in such a statement the reason why the case should be considered without the defendant. There is no need to invent anything here. Failure to appear on a summons or unwillingness to make contact will be sufficient grounds for filing a petition.
If the court deems it possible, the decision on the case will be made in absentia, without the participation of the defendant in the case. The latter will be sent written notice of the court's decision. The defendant can challenge it in the usual manner.
It is not always possible to consider a case without a defendant. Everything remains at the discretion of the judge conducting the trial. If the defendant’s testimony cannot be used to establish the truth, the case will be suspended, and the bailiffs will be tasked with searching for the necessary person. A decision in absentia cannot be made even if the defendant informed the court in advance that he could not appear at the hearing on that day due to objectively valid circumstances. In this case, the court date will be moved to a date that suits both parties.
Below is a standard form and a sample petition for consideration of a case in the absence of the defendant, a version of which can be downloaded for free.
The material was prepared by order of the law firm Dominium
How to correctly write a petition for consideration of a case in the absence of the plaintiff, defendant in the arbitration court and courts of general jurisdiction? We will show you a sample of such a petition.
In most lawsuits, the actual hearing of the case involves two opposing parties: the defendant and the plaintiff. But in fact, the meeting does not always take place with the participation of all the defendants. The reasons for failure to appear can be completely different: from the territorial remoteness of the person’s place of residence and banal reluctance, not supported by valid justifications, to serious obstacles related to health and family circumstances. A petition to consider a case in absence can be drawn up either for one meeting or for the entire period of consideration of the case.
Methods for filing an application
The image shows the main ways to apply.
Options for submitting a petition to the court
The law allows you to bring the completed form with attachments in person or send it to the court using Russian postal services. There is no need to pay any additional government fees.
Advantages of written appeal:
- The request must be answered and registered in the database.
- The arguments presented in the appeal can be confirmed by additional papers (appendices). The opinions of experts and translators are also accepted.
- These procedural actions are confirmation of the fact of legal awareness of the party in the case.
The parties are allowed to make demands during the meeting. Oral arguments can be supported by additional information (oral or written). The court is obliged to take them into account. The secretary must enter them into the protocol. According to the law, such an appeal has legal force on par with written ones.
Oral requests are prohibited only in cases where this is expressly stated in the law. This rule applies in:
- Civil proceedings (Article 35 of the Code of Civil Procedure of the Russian Federation).
- Arbitration proceedings (Article 155, Article 159 of the Arbitration Procedure Code of the Russian Federation).
- Criminal proceedings (Article 120 of the Code of Criminal Procedure of the Russian Federation).
- Administrative proceedings (Article 205 of the Code of Administrative Offenses of the Russian Federation).
Attention! The court hearing may be held using a conference call. In this case, the citizen’s oral appeals must be recorded in the minutes of the authorized body where the meeting is taking place, as well as the one that carries out such communication. This rule is recommended by the Supreme Arbitration Court of the Russian Federation.
Sample petition for consideration of a case in absence
(form) of a petition to consider the case in the absence of the plaintiff or defendant can be found at the link below.
In the absence of the plaintiff - sample
To the Oryol City Court Judge: Popov E.G. Plaintiff: Nikonov Arseny Nikolaevich Address: Orel, st. Proletarskaya, 87, apt. 56 Tel: 89654353454 Defendant: Kucherbaeva L.E. Address: Orel, st. Proletarskaya, 87, apt. 60 Tel: 89876345643
APPLICATION FOR CONSIDERATION OF THE CASE IN THE ABSENCE OF THE PLAINTIFF
The Oryol City Court is processing civil case No. 1-3534/2015 based on the claim of Nikonov A.N. to Kucherbaeva L.E. about flooding of residential premises. A court hearing in the case is scheduled for November 28, 2015. I am unable to attend the hearing due to family reasons. In this regard, guided by Article 167 of the Code of Civil Procedure of the Russian Federation, turning to the court, I ask: 1. Consider the merits of civil case No. 1-3534/2015 based on the claim of Nikonov A.N. to Kucherbaeva L.E. for the recovery of compensation for damage caused as a result of flooding of the apartment, without my participation, according to the evidence available in the case. 2. Send the court decision based on the results of the case by mail to my location address specified in this petition.
November 19, 2015 Nikonov A.N. _________
In the absence of the defendant - sample
To the Arbitration Court of the Republic of Bashkortostan Judge: Gazimullina A.E. Defendant: Individual Entrepreneur Natalya Aleksandrovna Chubarkina Address: Ufa, st. Kosmonavtov, 37, apt. 154 Telephone: 89649645324 Plaintiff: Victoria Alliance LLC Address: Ufa, st. Metallurgov, 65, building 1 Phone: 89376875436
APPLICATION FOR CONSIDERATION OF THE CASE IN THE ABSENCE OF THE RESPONDENT
Legal significance of the petition under the Civil Procedure Code and the Arbitration Procedure Code
The legal consequences of the failure of one of the parties or a third party involved in a civil or arbitration case to appear at a court hearing, and, consequently, the legal significance of a request to consider a case in absence under the Civil Code (Article 167 of the Civil Code of the Russian Federation) and the Arbitration Code ( Article 156 of the Arbitration Procedure Code of the Russian Federation) have both similar features and differences.
Legal significance of the petition under the Code of Civil Procedure of the Russian Federation
Proof of proper notification of a person about the upcoming court hearing is the fact that a corresponding summons has been sent to him.
Thus, according to Part 5 of Article 167 of the Code of Civil Procedure of the Russian Federation, any person taking part in the case, by sending a petition to the court to consider the case in his absence, can avoid direct presence at the court hearing and subsequently receive a court decision by mail. In fact, the validity of the reasons may not be of fundamental importance. Unlike Arbitration proceedings.
Petition for consideration of the case in the absence of the plaintiff in the arbitration court
- Allows you not to delay the consideration of the case.
- Allows you to avoid leaving the case without consideration.
- Allows you to avoid the penalties specified in Chapter. 11 of the Arbitration Procedure Code of the Russian Federation, to persons whose attendance at a court hearing is recognized as mandatory by the arbitration court.
The question of the possibility (expediency) of considering a case without the participation of specific persons is resolved by the court immediately at the beginning of the court hearing, taking into account the validity of the reasons for the absence and the position of other participants in the trial.
If you need qualified assistance in drawing up a petition to consider the case in your absence, you can contact a professional right now
A court hearing can be held with or without the participation of certain persons. If they do not appear in court, they must report the reasons for their failure to appear and provide evidence of their justification. In this case, it is necessary to file an application to the court to consider the case without the presence of the person.
The document is drawn up in free form in accordance with the rules for drawing up claims. If the petition is not granted, the case may not be considered, and proceedings may be conducted in absentia. If third parties fail to appear, there will be no consequences.
You can prepare an application requesting a videoconference with the court. This situation most often occurs when the applicant lives in another city.
If the reasons for non-appearance are valid (related to illness or other circumstances), then persons may be absent. But at the same time they must apply to postpone the trial to another day.
The law provides for the right to request consideration of a case without the participation of the applicant without giving reasons. Therefore, documents proving the excused absence may not be provided.
How to make a petition
Documentary notification to the court allows the case to be conducted in the absence of the citizen or to postpone the trial to another time. The rules for drawing up an application are not fixed by law, but there are certain requirements for execution:
- written format or on ready-made form;
- the presence of “live” signatures (there should be no facsimiles);
- Compliance with literacy.
A citizen can write a petition on his own or a lawyer can do it for him, which will allow him to correctly state the reasons for his failure to appear.
What is it for
The petition may be submitted to the court for a hearing without the presence of the plaintiff.
Its absence may be due to:
- recognition of the case as obviously winning;
- remote location from the judicial authority;
- disease;
- the person's employment;
- while on a long trip.
If a document is provided confirming the reason for absence, it is considered valid. In this case, the authenticity and reliability of the information will not be verified.
Judicial authorities often accommodate persons who file a request for absence. After all, this is how respect for the court is shown. If the plaintiff is not in the room, then the proceedings are conducted just as carefully, all circumstances are considered.
When submitting a document, the applicant must not only notify the court of his absence, but also remember that he automatically agrees with any decision made by the authority. However, this does not mean that he should act to his own detriment.
The plaintiff may file an appeal to another court to consider the case if he does not agree with the decision
What if the plaintiff refused to participate in the court hearing voluntarily?
The person who filed the claim has the right to petition the court to consider the case without his participation. In this case, the case is considered on the basis of the materials available in it.
If the defendant did not appear at the hearing, then in the framework of civil proceedings the court has the right to make a decision in absentia .
If the defendant was present at the hearing of the case, it is considered based on the materials available in it. It is possible that the dispute may take an unexpected turn and the decision will be in favor of the opponent.
Then the plaintiff will need to receive a copy of it on time in order not to miss the deadline for the appeal. In the arbitration process there is no such thing as a default judgment.
If the plaintiff asked to hear the case without his participation, then a decision on the merits of the dispute will be made in any case. In this case, the plaintiff will have time to file an appeal, which will begin to run from the moment he receives a copy of the appealed decision.
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Examples of drawing up an application for consideration of a case for the court
Cases may be considered by the court without the participation of one or more parties to the process. In each case, an official document is required confirming the impossibility of their presence in the courtroom.
Many people wonder how the hearing is conducted without my participation, and also in the absence of the plaintiff, defendant or third parties. It is worth studying the procedure for handling in each situation.
Absence of plaintiff
The basis of justice is the principle of competition. Its essence lies in the need for participation in the case of persons whose interests are opposed.
A civil case is considered with the presence of both parties. But if compliance with this rule is impossible, then the reasons must be provided to the court. Then the case will be considered on another day.
The process can also be carried out without the participation of one of the persons. The judge makes such a decision if he was not notified of the absence of a party or the reasons seemed disrespectful to him.
The law provides for the right of the parties to write a statement about the consideration of the case without their participation. In this case, the judicial act is sent by mail. The document must be submitted to the court well before the process begins.
There are some rules for drawing up an application.
In the header you must provide information about:
- judicial authority;
- persons who are involved in the process;
- representative of the plaintiff.
It describes the circumstances of the case and other important points:
- case number;
- claim;
- date and time of hearing;
- inability to attend a meeting;
- regulations that allow absence.
At the end, a request is indicated to conduct the review without the participation of the plaintiff and send the decision by mail.
If a person is going to be absent from a meeting, they should take care to provide a detailed written description of their views on the situation. This is necessary so that the court can examine the arguments without the presence of the plaintiff.
Without my participation
The case can be considered without my participation if there are good reasons.
Among them are:
- illness or hospitalization;
- work that does not allow time away;
- presence of disabled children or infants who cannot be left at home;
- absence from the city where the case is being considered.
To notify the court, you must submit an application. The filing procedure is regulated by the Civil Procedure Code.
The document can be provided during pre-trial proceedings, as well as during preparation for the hearing. The court must respond within a short period of time.
The application must be supported by relevant documents confirming the valid reasons for absence. A sample petition can be found on the Internet or by contacting a law firm.
If there is no defendant
The right to consider a case without the presence of the defendant is enshrined in the Civil Procedure Code of the Russian Federation (clause 5 of Article 167) and the Arbitration Procedural Code of the Russian Federation (clause 2 of Article 156). An administrative case without one of the parties will not be considered.
There is no standard sample petition that the defendant sends to the court.
However, in order for the body to accept and consider the application, it must reflect in it:
- name of the judicial authority;
- the procedural role of the person who files the petition;
- details, address and telephone number of the defendant;
- information about the case indicating the parties to the process, the essence of the requirements and the date of the meeting;
- a request to consider the case without the participation of the defendant, indicating the reason;
- request for delivery of the decision by mail;
- date of compilation and signature.
The petition can be submitted in several ways.
Among them are:
- personal appeal to the office;
- by mail (by a valuable letter with notification);
- online through the “My Arbitrator” system (when applying to the arbitration court).
In the absence of this document, the court considers the case without the defendant during absentee proceedings.
In some cases, the defendant is a trustee. However, it may also be absent from the meeting.
Then it is also necessary to draw up a petition according to the above procedure, but with the data of the representative entered into the document. In addition, you will need to attach a copy of the notarized power of attorney to your application.
Third party
A third party may be a direct participant in the process. It is prescribed by the plaintiff or defendant as mandatory citizens.
Depending on the relationship to one or the other party, a person has the right to testify in their favor. This must be done before a court decision is made.
It is worth remembering that such participants are not direct parties to the proceedings. However, they are also relevant to the case at hand.
Sometimes third parties cannot attend the meeting. In this case, it is necessary to prepare a petition to consider the case without him.
The Civil Procedure Code of the Russian Federation (Article 167) stipulates the need to notify the court of the impossibility of attending the hearing of the case, indicating good reasons. The court may postpone the hearing or hold a hearing without the person.
The petition is prepared in any form. It must indicate the details of the court, details of the participants in the process, information about the case, and the date of the hearing. It is imperative to describe the circumstances that prevent the person from attending the hearing.
To make the participant’s position clear, it is necessary to describe the recognition or denial of the plaintiff’s claims and challenges.
Cases of transfer or deposition
The meeting may be postponed to another day. The adjournment is carried out in accordance with the Civil Procedure Code of the Russian Federation (Article 169).
The judicial authorities must notify the participants of the date and time of the hearing. The authorities are not obliged to monitor the attendance of persons. Having considered the reasons, the chairman determines the possibility of considering the case without one of the parties.
If a person seeks to participate in the proceedings, he must notify the court in advance of his absence, indicating the reasons. If they are respectful, then the case may be postponed.
- illness, hospital stay for treatment;
- business trip, mandatory presence at the workplace;
- emergency incidents where the person is the culprit or the victim;
- care for dependent family members.
The degree of respect is determined by the court on an individual basis. The court hearing may be postponed even if all participants have appeared at the trial.
This situation is possible when:
- presence of a counterclaim;
- the need to provide additional evidence;
- the emergence of new participants in the case;
- changing the requirements of the claim;
- the presence of technical problems during the conference call;
- failure of a representative to appear.
If, after a joint study of the circumstances, the court comes to a decision to hold a hearing, the process can begin even if the above reasons are present.
To draw up a petition to postpone the case, you need to focus on the general rules for preparing documents.
It states:
- addressee of the application;
- the person serving it;
- reasons why the case should be postponed;
- evidence of valid reasons;
- please reschedule the meeting for a specific date.
The document is submitted in advance and is also supported by the necessary evidence of valid reasons.
If a person realizes on the day of the hearing that he cannot be present in the courtroom, then an oral petition may be submitted by telephone or through a representative.
It will be necessary to provide confirmation of the inability to attend the hearing (hospital number, phone number of a police officer).
Sometimes it is not necessary to postpone the case, but to postpone it, then one date changes to another and in this case the acceleration of the consideration will not occur, but the person will be able to attend the meeting
Legislative nuances of not appearing in court
It should be borne in mind that the judge makes a decision to consider a case in the absence of the plaintiff solely based on the complexity of a particular paperwork. The judge’s decision is largely influenced by the evidence base of the case, respect for the rights and interests of participants in the proceedings, as well as third parties. If the absence of one of the parties to the case does not affect the quality of consideration of the claim, the court makes a decision in the absence of the plaintiff.
In addition, it is impossible to refer to the norms of Article 222 of the Code of Civil Procedure of the Russian Federation, according to which the court has the right to make a decision in the absence of the plaintiff, when filing an appeal. The current legislation does not provide for the reversal of a court decision solely on formal grounds. The grounds for appeal are solely a violation or, as an option, incorrect application of the regulatory legal requirements of procedural legislation, which became the reason for making an incorrect decision.
Thus, in order to resolve the paperwork issue in a favorable manner, it is best to actively participate in all court hearings, and in case of forced absence, present to the court the necessary arguments and evidence of your absence.
Ways to postpone a meeting
There is no need to invent anything, you can:
- Just don’t go and the court will decide on its own to consider the case.
- Sell the application for consideration without you, write that you are busy with household chores.
Administrative procedure
Administrative cases are considered in accordance with the Code of Administrative Offenses of the Russian Federation. Before consideration, a check is carried out, the procedure of which is described in Article 29.1. One of the points is the consideration of petitions or challenges.
Petitions are necessary to ensure a comprehensive, complete and objective consideration of the circumstances of the case. Documents can only be submitted in writing.
Applications are reviewed immediately. After this, a determination must be given and communicated to the applicant.
If the persons participating in the case do not appear in court without a good reason, then the consideration cannot be carried out. These parties must be forcibly brought to the room where the meeting is being held.
Ways to postpone a meeting
The plaintiff has the right to ask not only to consider the case in his absence, but also to postpone the hearing.
The reasons for this are:
- calling witnesses;
- emergence of new evidence;
- the need to do an examination;
- attracting specialists;
- appealing a court decision.
The petition is drawn up both separately and included in other applications sent to the court. The document must indicate a reasonable period for which it is proposed to postpone the meeting.
Additional preparation nuances
When considering the case, some nuances are highlighted. One of the features of the process is the impossibility of forcing a party to participate in arbitration proceedings.
If the plaintiff does not appear at the hearing, then several scenarios are possible:
- The hearing may be rescheduled. However, it will not be beneficial for the plaintiff to delay the decision.
- If the judge considers the failure to appear disrespectful, the person may be subject to administrative liability in the form of a fine.
- The decision may be made not in favor of the plaintiff or without taking into account all his requirements.
- The case may remain without consideration.
The plaintiff must weigh the pros and cons of attending the trial in advance. Otherwise, things may not turn out in his favor.
