The essence of the legal institution of leaving a claim without progress requires the presence of some correctable defects in it. They cannot be established by the court at its discretion, but must meet the criteria determined by current legislation.
The applicant is ordered to eliminate procedural errors and a deadline is set for this. If he makes all the necessary adjustments, then the claim is accepted and the date of the first court hearing in the case is set. In this case, the legally significant date for filing the claim does not change.
Leaving the claim without progress means that the court considers its very grounds sufficient to subsequently accept the claim for consideration and initiate a case. Therefore, this institution should be distinguished from leaving a claim without consideration, which means the presence of a legal defect that cannot be corrected. The rules for how the court leaves a claim without progress are established by Art. 136 Code of Civil Procedure of the Russian Federation.
Features of application of provisions
The period set by the judge must meet the criteria of reasonableness and take into account all important circumstances on which the correction of defects may depend. The peculiarity is that the court does not return the application, does not refuse to accept it, but also does not take further procedural actions. At the time of making such a decision, the judge must make a reasoned decision.
Part 1 of the article in question introduces an exhaustive list of grounds for leaving the claim without progress. This goes beyond the requirements for the form and content of the application itself and the documents attached to it. Because of this, in its ruling the court is obliged to refer to Art. Art. 131 and (or) 132 of the Code of Civil Procedure of the Russian Federation. Of course, the deficiency that must be corrected by the plaintiff must also be indicated.
The time period allotted to the court for making an appropriate determination is not specified specifically in the Code, but within the meaning of Art. 133 of the Code of Civil Procedure of the Russian Federation, it must be issued within the period allotted to the court to consider the issue of accepting the claim for proceedings. For this reason, the determination must be made within five days from the date of receipt of the claim.
Part 2 of the article in question determines the legal consequences of the applicant’s elimination or failure to eliminate the shortcomings cited in the court’s ruling to leave the claim without progress. If the plaintiff promptly fulfills all the requirements specified in the ruling on leaving the claim without progress, then the application receives the status of being filed on the day of its first submission to the court. Otherwise, the application is considered not to have been submitted and is returned to the applicant along with the documents that were attached to it.
The court must also make a ruling on this. Persons whose procedural rights are affected by it may file a private complaint against the court's ruling.
Leaving a claim without progress is impossible if a case has already been opened and accepted for proceedings. If during this period circumstances are discovered that should cause the application to be left without movement, then the claim can neither be returned nor left without movement.
The judge who accepted the application must take measures to ensure that the plaintiff eliminates all shortcomings during the preparation of the case for consideration or after a decision is made on the merits of the case. This is particularly stated in the Supreme Court ruling dated June 24, 2008 No. 11.
How to write a statement about the elimination of deficiencies
The header of the application is the same as it was in the statement of claim, only we add the name of the judge, which we now know (it is in the court ruling) and the entry number - optional. We will indicate them on the right in the corner after the header.
In the middle of the statement we write the following:
STATEMENT regarding elimination of deficiencies
Next is the following text:
The Kirov District Court of St. Petersburg issued a ruling on October 10, 2021. about leaving without movement the statement of claim of Ivanov I.I. to LLC "ROMASHKA" on the protection of consumer rights. The reason for leaving the statement of claim without progress was that this claim cannot be considered within the framework of the law on the Protection of Consumer Rights, and therefore the plaintiff needs to calculate the cost of the claim, provide a sheet for calculating the amounts recovered, and also pay the state fee. The plaintiff, in pursuance of this court ruling, paid the state fee to the court, which he attached to this application along with the calculation sheet.
Here, in the example, the plaintiff did not pay the state fee to the court and the court left the statement of claim without progress, indicating to the plaintiff the need to pay the state fee, as well as provide a calculation sheet (where to indicate and calculate the price of the claim).
This application must be signed and sent to the court and the parties to the process, also by registered letters in accordance with rules 132 of the Code of Civil Procedure of the Russian Federation.
Link to the article in question in the judicial act
Decision No. 2-569/2020 2-569/2020~M-161/2020 M-161/2020 dated May 29, 2020 in case No. 2-569/2020 of the Kogalym City Court can become an example of a reference to the article in question in a judicial act.
It says that the actions of the filer of the claim in court by indicating the personal data of the defendant in the statement of claim are admissible, by virtue of the provisions of Art. 131 of the Code of Civil Procedure of the Russian Federation, the claim must indicate the name of the defendant, his place of residence or, if the defendant is an organization, its location, and the absence of this data in accordance with Art. 136 of the Code of Civil Procedure of the Russian Federation becomes the basis for leaving the claim without progress.
These actions are aimed at individualizing the requirements and thereby realizing the right to administer justice on the basis of adversarialism and equality of participants in the case, which is confirmed by the ruling of the Constitutional Court of the Russian Federation dated September 28, 2017 No. 2010-O.
How to avoid leaving a claim without progress
It is not difficult to avoid a situation where the statement of claim remains without progress. You need to carefully study Articles 131-132 of the Code of Civil Procedure of the Russian Federation. And find a suitable sample statement of claim on the website. After all, here we publish current samples of statements of claim, drawn up in accordance with the requirements of procedural law. These samples have been repeatedly used in practice when filing lawsuits throughout the country. Using the required sample (subject to careful reading of the law and the lawyer’s recommendations) gives almost 95% results when filing a claim in court. Not 100%, because... there are subjective reasons for the judge.
The main rule that should be applied when drawing up a statement of claim is “the simpler the better.” The main thing is to fulfill the established requirements, and all emotions and personal perceptions of the situation can be expressed in court. And in case of doubt, you can use the help of a duty lawyer.
When and who can file counterclaims?
The right to file a counterclaim is retained by the defendant at all stages of the trial preceding the moment the court makes a final decision. That is, a counterclaim can be filed even immediately before the end of the process, after the judges leave for a meeting before making a decision.
In such circumstances, the judge will be forced to order the resumption of the proceedings, at which point the defendant will have the opportunity to make counterclaims against the plaintiff.
The defendant may file this type of claim personally or through an authorized representative with appropriate authority. The list of powers that the defendant grants to his legal representative is specified in the body of the agreement concluded between them.
Counterclaim. Sample
Filing a claim
The filing of a counterclaim is carried out according to standard, legally prescribed rules. If they are violated, then the consequences will be similar to the incorrect filing of the initial claim.
If legal regulations are not followed, then:
- the application may be terminated;
- the document can be transferred back to the applicant;
- This claim may be rejected.
Filing a counterclaim is possible to offset the original claim. However, the defendant has the right to prepare an objection. This is allowed if the response demand does not exceed the original one. In other cases, a counterclaim is sent.
How to correct the abandonment of a claim without progress if there is not enough time to fulfill the court’s demand.
It is not uncommon that the requirements presented to the plaintiff by the court contain the need to collect documents, while the period specified in the ruling on leaving the statement of claim without progress is clearly not sufficient to obtain such documents through the same MFC.
In this case, you must order these documents (paying a fee for them, if necessary). Next, make a photocopy of the application to receive these documents and send an application to the court with a request to extend the period for correcting the shortcomings that prevent the court from accepting the statement of claim. Attach a copy of the application for requesting documents to this application to the court.
It is advisable to indicate the period in the application that you are asking for an extension to leave the statement of claim without progress.
When should deficiencies be corrected?
The time period within which the deficiencies must be corrected is set by the court.
They will be reasonable for each category of disputes. For example, the court takes into account the complexity of the case, the location of the person in another region, and the number of participants in the process. If the citizen has not corrected the existing deficiencies within the prescribed period, the statement of claim is returned. If the deadlines for adjustment are met, it will be considered filed on the day the citizen first visited the court.
Sometimes citizens are faced with the impossibility of attaching additional documents due to their absence or lengthy preparation. Then they are obliged to apply to the judicial authority in order to extend the time limit for correction. The second option is to require the document from the court. The citizen needs to prove that he cannot do this on his own.
The court must send a ruling on the decision no later than the next day after consideration of the document. But sometimes mail takes a long time. In this regard, the citizen does not receive the paper on time. Therefore, it cannot correct the shortcomings within the prescribed period.
In this case, the citizen must apply for restoration of the period. But if the court has already returned the claim, then you can file a claim to leave the statement of claim without progress without grounds, thus appealing the judicial act.
When are counterclaims not accepted?
The law does not provide for the possibility of consolidating claims and examining counterclaims in cases involving the return of a child to the other parent after divorce. The court has a similar attitude to cases regarding the implementation of access rights.
There are a couple of major exceptions to the above rule. Firstly, the case will be considered when the demands for the return of more than one child are combined if the children were brought into the country or are being held on its territory without the existence of legal circumstances.
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Secondly, the court will take into account the case of consolidation of claims affecting access rights in relation to more than one child if there are grounds for this, provided for by an international treaty of the Russian Federation.
What to attach to the application for elimination of deficiencies
In fact, according to the norms of the Code of Civil Procedure of the Russian Federation, you do not need to attach anything, but I advise you to attach a determination on leaving without movement (more precisely, a copy of it). So, it will be faster and easier for the office and the judge himself to navigate and determine whether everything has been corrected, and as a result, make a quicker decision on setting a court date.
If you had any shortcomings in paying the state duty or need to provide any documents, then, of course, you need to attach them in originals or copies. If the receipt for payment of state duty is the original! And don’t forget to send copies of documents to the participants in the future process that are indicated in your statement of claim - the defendant, third parties, the prosecutor’s office, etc.
What is a counterclaim?
A counterclaim is a document containing claims made by the defendant to the plaintiff's allegations. It is considered one of the ways to protect the second party in civil proceedings.
A document is required if the defendant has claims against the plaintiff. A claim is filed at a time when the case has already been initiated.
Counterclaims can be submitted at any time during the consideration of the case. But this must be done before a decision is made. It is better to file a counterclaim at the preparatory stage.
Appeal against the determination
According to Part 3 of Article 136 of the Code of Civil Procedure of the Russian Federation, a court ruling to leave a statement of claim without progress can be appealed.
Therefore, if you believe that the court’s ruling is illegal and your rights are being violated, you have two ways to further develop the situation.
The first is to appeal the determination, the second is to simply eliminate the shortcomings identified in the determination.
As a rule, citizens, when going to court on their own, prefer to dutifully follow the judge’s instructions, which are often not always legal in nature.
Many lawyers do the same, knowing full well that appealing a ruling to a higher authority (especially the cassation court) can take quite a lot of time, i.e. They act on the principle “it’s faster this way.”
We are in no way calling for this method of solving the problem that has arisen, but, as a rule, this method is the fastest transition to the stage of accepting the application for production.
Of course, if there are sufficient grounds, you can appeal the ruling, and perhaps a higher authority, pointing out the mistake to the judge, will cancel it, as a result, you may even receive some moral satisfaction, but still, do not forget that the main thing is to achieve a goal, a certain result - the court's satisfaction of your claims.
If you nevertheless decide to appeal the determination, this is done as follows.
The ruling can be appealed within fifteen days from the date of its issuance by filing a private complaint with a higher court; the complaint is filed through the court whose ruling you are appealing.
Thus, using the Moscow courts as an example, a complaint against a magistrate’s ruling is addressed to the district court and filed through the court that issued the ruling, i.e. through the magistrate.
Simply put, in the “header” of the complaint we indicate the name of the district court that will consider it, and we refer the complaint itself and submit it to the court district of the magistrate with whose determination we do not agree.
Accordingly, we will address the complaint against the district court’s ruling, i.e. submit (not to be confused with the term “surrender”) to the Judicial Collegium for Civil Cases of the Moscow City Court.
We submit the complaint to the district court expedition, i.e. to the court that issued the appealed ruling.
Under what conditions are counterclaims accepted?
In order for a counterclaim of the Code of Civil Procedure to be accepted by the court for consideration, certain conditions must be met.
First, the claims must address the applicant's original claims.
Secondly, the counterclaim must be drawn up in such a way that, if approved by the court, the possibility of satisfying the provisions of the main claim is excluded completely or partially.
Third, there must be a relationship between the two claims. That is, for example, if the plaintiff draws up a statement regarding the nuances of the division of joint property after a divorce, then the defendant can draw up counterclaims only in the same case, and not in resolving disputes about further custody of children.
The last claim in the example is not a counterclaim and is considered separately.
