Instructions: fill out an application for partial waiver of claims

How to draw up a petition to consider a case in the absence of the plaintiff, defendant, or third party? Is it always necessary to appear in a civil case? What valid reasons for absence can there be?

We will consider all possible options for considering the case in the absence of the persons involved. We will tell you how to correctly draw up and submit to the court an application for consideration of a case without the presence of a party. Let’s answer the question: “can the court consider the case without my presence?”

Download a sample petition for your situation and get advice on your situation from our lawyers.

Consideration of a case in the absence of the plaintiff, defendant and other persons

There is no rule in civil procedural law that obliges you to be personally present in court if you are a party to the case. Although the law provides for the obligation to notify the court of the reasons for failure to appear, there is no liability for the absence of such a message.

The court cannot oblige the persons participating in the case to appear in court and present any documents. At the same time, the court has the obligation to notify about the time and place of the trial (Article 150 of the Code of Civil Procedure of the Russian Federation). Since there is no obligation to appear in court, the parties’ requests to force the other party to personally appear in court cannot be resolved positively.

At the same time, the lack of sanctions for failure to appear at a court hearing may be compensated by other negative consequences for participants in civil proceedings.

It is necessary to distinguish between the impossibility of appearing in court for some objective reasons of a valid nature and reluctance to participate in the trial. Participants in a case always have the opportunity to request a postponement of the consideration of the case.

In the absence of petitions and statements indicating the reasons for failure to appear, the court, if there is evidence of proper notification, may consider the case in the absence of the defendant, plaintiff and other persons. In this case, the party’s position in the case will not be heard, the party will be deprived of the opportunity to respond in a timely manner to the opponent’s explanations and the evidence presented by him. When making a negative decision, the appellate authority will not accept a reference to failure to appear (in the absence of a request for consideration in the absence of a person) as an argument for canceling the decision.

General meeting

Chapter 9.1 of the Civil Code specifies the requirements that the minutes of the general meeting must meet. Mandatory document details:

• place of compilation;
• date of the protocol;
• form of the meeting;
• required quorum at the meeting;
• agenda;
• voting results by issue - “for”, “against”, “abstained”;
• information about the persons who carried out the vote count.

If the minutes of the general meeting do not contain the listed information, the general meeting may be cancelled. The Civil Code specifies the reasons for filing an appeal against the minutes of a general meeting, for example, if the owner was not notified of the meeting or voted against it. In this case, he has six months to appeal the protocol. If the owner abstained during voting, then it will not be possible to appeal the decision. If the number of votes of the owner is not reflected in the voting results, the general meeting also cannot be declared invalid.

Petition to consider the case in the absence of the defendant

The defendant has the right to file a motion to consider a civil case in his absence, indicating or without indicating the reasons for his failure to appear. In the absence of a statement from the defendant, the case will be considered in absentia proceedings (Article 233 of the Code of Civil Procedure of the Russian Federation).

We recommend that defendants in any case write to the court objections or responses to the claims. This will allow you to convey in writing your position on the case under consideration, which must be taken into account by the court when making a court decision.

It makes sense not to file a petition to consider the case in the absence of the defendant if there is no desire to appear in court, he needs to drag out the case and there is a possibility of subsequent cancellation of the default judgment.

In other cases, it would be correct for the defendant to draw up and submit to the court his application for consideration of the case without his presence. Download a sample petition for consideration in the absence of the defendant on the website.

Samples of consumer protection claims

B (name of organization, individual entrepreneur)

Address From full name

Address for sending a response, contact phone number

CLAIM.

“__” ’20 I purchased in your store (product name, model) for the price of rubles. The product has a warranty period of one year. The product is included in the list of technically complex products.

As a result of using this product, I discovered a significant drawback:

Option 1: “ “ 20 year in connection with (describe in detail what did not work) I handed over the product for warranty repairs to (name of store or service center). During the repair, work was carried out to eliminate the defect (what). However, after the repair (when) the same defect appeared again.

Option 2: “ “ 20 year in connection with (describe in detail what did not work) I handed over the product for warranty repairs to (name of store or service center). However, the repair did not take place, and in 2020 I was issued a certificate of non-repairability of the product. That is, the declared deficiency cannot be eliminated.

Option 3. “ “ 20 year in connection with (describe in detail what did not work) I handed over the product for warranty repairs to (name of store or service center). However, the repairs did not take place, and in 20__ I was given a certificate stating that the repairs were impractical. That is, the cost of eliminating the defect is close to the cost or exceeds the cost of the product itself.

In accordance with Article 18 of the Law of the Russian Federation “On the Protection of Consumer Rights”, in relation to a technically complex product, a requirement to return the amount paid for such a product or to replace it with a product of the same brand (model, article) or with the same product of a different brand (model) , article) with a corresponding recalculation of the purchase price after the first 15 days from the date of transfer of the goods to the consumer are subject to satisfaction, including in the event of a significant shortage of goods.

Art. 22 of the Law “On the Protection of Consumer Rights” stipulates that consumer demands for the return of the amount of money paid for goods must be satisfied by the seller within ten days from the date of presentation of the corresponding demand. At the same time, Part 1 of Art. 23 of the Law establishes that for violation of this deadline, the seller who committed such violations pays the consumer a penalty in the amount of one percent of the price of the goods for each day of delay.

Based on the foregoing, I renounce the purchase and sale agreement and request, within 10 days from the date you receive this claim:

• return to me the money paid for, in the amount of rubles, rubles, kopecks;
• compensate for losses caused by the sale of goods of inadequate quality in the amount

rubles (for example, the amount of interest on the loan if the product was purchased on credit, the cost of an additional warranty, software, accessories and components for a given model, etc.);

• give a written response to the claim if it is impossible to satisfy my requirements.

Attachment: account details for transferring money, a copy of the purchase receipt, copies of documents confirming the amount of losses, a copy of the certificate of non-repairability from the ASC or copies of reports of previous repairs from the ASC.

Last name I.O., “ “ 20 years old

Request for consideration of the case in the absence of the plaintiff

The plaintiff also has the right not to appear in court to hear the case regarding his claim. The presence of valid reasons does not matter. A simple reluctance to be present in person at the trial is enough.

For the plaintiff, a negative reason for the absence of a request to consider the case in his absence will be the possibility of leaving the statement of claim without consideration (Article 222 of the Code of Civil Procedure of the Russian Federation). This occurs when the plaintiff repeatedly fails to appear at the court hearing without a valid request, in the absence of a request to consider the case without his presence.

The plaintiff may specifically not file an application, since in some cases it may be advantageous to leave his claim without consideration (for example, there is no necessary evidence), so that later, after some time, the case can be reopened and its consideration continued.

Download our sample application for consideration in the absence of the plaintiff.

Legal grounds

The decision to abandon a claim can significantly change the course of judicial consideration, therefore, the abandonment of a claim under the Code of Civil Procedure of the Russian Federation is handled especially carefully.

There are conditions established in the Code of Civil Procedure of the Russian Federation for the use of this right:

• voluntariness of the decision (the judge checks this circumstance without fail);
• the possibility of filing a corresponding petition at any time during the consideration of the case. In practice, they most often refuse during the pre-trial preparation of the case;
• presentation of a petition only by the plaintiff or plaintiffs jointly or by a representative, if such authority is separately indicated in the power of attorney (Article 54 of the Code of Civil Procedure of the Russian Federation);
• the opportunity to waive claims either in full or in part (a partial waiver of a claim in civil proceedings looks like a reduction in the amount to be collected, or the removal, for example, of non-property claims).

Consideration of a case in the absence of a third party

Third parties are more likely than other participants in a civil case to inform the court about considering the case without their presence. This is because the decision does not directly define their rights and obligations. However, third parties should take into account that they are involved in the case, since the court’s decision may affect their rights and obligations (Article of the Code of Civil Procedure of the Russian Federation). A decision in a civil case can be used subsequently as having prejudicial force when claims are brought directly against a third party (for example, in a recourse claim).

We recommend that a third party inform the court about the possibility of considering the case in his absence by filling out a petition using our sample. In addition, a third party has the right to submit a written response to the statement of claim, in which he can reflect his position on the issue being considered in court.

We suggest using our sample application (petition) for consideration of a civil case without the participation of a third party.

Waiver of claim or settlement agreement

If the parties have reached a voluntary agreement, then the plaintiff waives the claim. There are two options between the parties, either the plaintiff simply waives the claim without any documented documents, or the parties can enter into a settlement agreement before the court makes a decision.

The settlement agreement is carried out and approved by the court, it is binding between the parties, for example, the parties can agree on the payment of payments for a certain period, which the defendant will have to pay.

Often the parties refuse to enter into a settlement agreement, but this may have consequences in the future, for example (if the debtor promised to pay the amount of debt for a certain period without a settlement agreement, he may not comply with the court’s ruling; in fact, his actions are not documented). A settlement agreement between the parties is concluded with the aim of minimizing risks in the future, so that the parties have something to refer to.

Petitions with a representative

The presence of a representative of a person participating in the case does not relieve him of the obligation to notify the court of the reasons for failure to appear, even if the representative himself participates in the court hearing. As a rule, the courts require that the application for consideration of the case in absence be written by the party in his own hand.

If a party fails to appear and a representative appears, there may be the same adverse consequences in the form of abandonment without consideration or proceedings in absentia.

A representative of a legal entity, organization or government body may file a petition to consider the case in the absence of the representative. As a rule, the court does not raise questions regarding such statements.

Drawing up and submitting a petition to the court

Drawing up a petition in which citizens or representatives of legal entities ask to consider the case without their participation is not very difficult. However, it requires certain details that must be specified:

1. the court in which your application is addressed
2. personal data and procedural status
3. name of the application - Petition for consideration of the case in the absence
4. details of the civil case for which the petition is being filed
5. request to consider the case without your participation
6. date and signature of the applicant

Additionally, in the petition you can request that a copy of the court order be sent by mail to your home address.

A request to consider a case in absence can be filed as a separate statement, but it is also permissible to include it in the text of other petitions and statements. addressed to the court. Plaintiff. For example. may declare the consideration of the case without his participation already in the statement of claim. and the defendant in the submitted objections.

The petition can be submitted to the court in person (to the judge or through the office) or sent to the court by mail. Your representative can also deliver such a statement. There are no special requirements for this action.

A request to consider a case in the absence of its participants is resolved by the court at a court hearing, the court issues a ruling indicating the possibility of considering the case in the absence of persons participating in the case.