Pre-trial procedure for the settlement of disputes in civil proceedings. Mandatory claim procedure. New rules When the complaint procedure is considered complied with

Since last year, the claim has taken on particular importance for companies. This is due to the Federal Law of 03/02/2016 No. 47-FZ "On Amendments to the Arbitration Procedure Code of the Russian Federation." If prior to the adoption of this law the filing of a claim, as a general rule, was not necessary, now the preparation of this document has become a necessity (part 5 of article 4 of the Arbitration Procedure Code of the Russian Federation). We will tell you how to prepare and send a claim so that the court considers the pre-trial dispute settlement procedure complied with and accepts the claim.

The pre-trial dispute settlement procedure is designed, first of all, to relieve the courts. This is stated in Chapter 15 of the Concept of the Unified Civil Procedure Code of the Russian Federation, approved by the decision of the Committee on Civil, Criminal, Arbitration and Procedural Legislation of the State Duma of the Federal Assembly of the Russian Federation of December 8, 2014 No. 124 (1).

The courts indicate that the claim procedure for resolving a dispute allows you to voluntarily and without additional spending of time and money restore violated rights (definition of the Armed Forces of the Russian Federation of 23.07.2015 No. 306-ES15-1364). It is also noted that the claim procedure is one of the forms of protection of civil rights, which allows the dispute between the alleged creditor and the debtor to be settled before the case is brought to court (ruling of the Moscow Arbitration Court of 11/16/2016 in case No. A40-174746 / 16). Moreover, without the participation of special state bodies (resolution of the Federal Antimonopoly Service of the North Caucasus District of 03/02/2011 in case No. A53-13079 / 2010).

When a claim is mandatory

As a general rule, before filing a statement of claim with the arbitration court, the opponent must send a claim (part 5 of article 4 of the Arbitration Procedure Code of the Russian Federation). Exceptions are the following categories of cases:

• on the establishment of facts of legal significance;
• on awarding compensation for violation of the right to legal proceedings and to the execution of a judicial act within a reasonable time;
• bankruptcy;
• corporate disputes;
• on the protection of the rights and legitimate interests of a group of persons;
• on early termination of protection of a trademark due to the fact that it is not used;
• on challenging the decisions of the arbitration courts.

In practice, everything is much more complicated. The fact is that in the event of some disputes, the defendant cannot satisfy the applicant's requirements. This can only be done by a court. Nevertheless, the plaintiff must file a claim (it is not clear, however, why).

This applies, for example, to claims for recognition:

• property rights to real estate (ruling of the Arbitration Court of the Chelyabinsk Region dated 06/08/2016 in case No. A76-13757 / 2016);
• contract not concluded (ruling of the Arbitration Court of the Oryol Region dated 02.11.2016 in case No. A48-6994 / 2016);
• invalid general meeting of owners of premises in an apartment building (ruling of the Arbitration Court of the Stavropol Territory dated June 14, 2016 in case No. A63-6578 / 2016);
• the transaction is invalid (ruling of the Arbitration Court of the Novosibirsk Region dated June 14, 2016 in case No. A45-12097 / 2016). It is known that a contested transaction can be declared invalid only by the court, and not by the parties in the framework of the pre-trial settlement of the dispute (clause 1 of article 166 of the Civil Code of the Russian Federation).

However, sometimes reason wins, and the courts recognize that in some situations the actions of the defendant cannot lead to a pre-trial settlement of the dispute. Thus, the Second Arbitration Court of Appeal noted that the court must proceed from the real possibility of the conflict between the parties to be exhausted (ruling of the Second Arbitration Court of Appeal dated 04.10.2016 in case No. A31-1287 / 2016).

In cases on the issuance of a writ of execution for the compulsory execution of an arbitral tribunal's decision, some courts require a claim (determination of the Arbitration Court of the Khanty-Mansiysk Autonomous Okrug - Yugra dated 08.22.2016 in case No. 03/20/2017 in case No. A60-33490 / 2016, resolution of the Arbitration Court of the Moscow District dated October 17, 2016 No. F05-16283 / 2016 in case No. A41-36154 / 16).

The courts believe that a claim should be sent to the defendant regarding his unjustified refusal to fulfill the obligation (definitions of the Moscow Arbitration Court in case A40-7246 / 2017, the Arbitration Court of the Tula Region dated 06/10/2016 in case No. A68-4962 / 2016).

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Disputes arising from public legal relations can be brought to court after observing the pre-trial procedure established by law (part 5 of article 4 of the Arbitration Procedure Code of the Russian Federation). For example:

• before going to court, the tax authority is obliged to offer the person brought to justice to voluntarily pay a fine (paragraph 2, clause 1 of article 104 of the Tax Code of the Russian Federation);
• non-normative acts of tax authorities, actions (inaction) of their officials must be appealed to a higher tax authority (clause 2 of article 138 of the Tax Code of the Russian Federation). In particular, the decision to refuse state registration of a legal entity can be appealed to the court only after applying to a higher authority (Article 25.2 of the Federal Law of 08.08.2001 No. 129-FZ "On State Registration of Legal Entities and Individual Entrepreneurs").

Consequences of non-compliance with the pre-trial order

Failure to comply with the claim procedure threatens:

• leaving the claim without progress and returning it in the future (part 1 of article 128, clause 5 of part 1 of article 129 of the Arbitration Procedure Code of the Russian Federation);
• leaving the claim without consideration (clause 2, part 1 of article 148, article 149 of the Arbitration Procedure Code of the Russian Federation).

Everything will depend on when the court pays attention to this fact.

The court may reveal non-compliance with the pre-trial order when the claim has not yet been accepted. Then a ruling is made to leave the claim without movement, in which the plaintiff is invited to eliminate the violations within a certain period. After compliance with the complaint procedure, the court will begin work on the case. If the plaintiff does not send a claim, the claim and state duty will be returned to him.

If the court issued a ruling on the acceptance of the case and only then found that the claim procedure was violated, the case remains without consideration, and the state duty is returned.

After the plaintiff complies with the requirements of the law, he can file a claim again. In addition, he has the right to appeal against the decision to return the claim or leave it without consideration.

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It happens that the courts resolve the dispute on the merits, and upon appeal it turns out that the complaint procedure has not been observed. Then the claim is left without consideration (part 3 of article 269, clause 6 of part 1 of article 287 of the Arbitration Procedure Code of the Russian Federation, resolution of the Arbitration Court of the North-Western District of 13.02.2015 No. F07-536 / 2014 in case No. A56-9086 / 2014 ).

Compliance by the plaintiff with the obligatory pre-trial procedure is verified by the court independently, regardless of the arguments or objections of the persons participating in the case. In this case, the defendant, defending himself, has the right to refer to the plaintiff's failure to comply with the pre-trial order and ask the court to leave the claim without consideration on this basis (determination of the Alagirskiy District Court of the Republic of North Ossetia - Alania dated November 30, 2016 in case No. 2A-640/2016).

Violation of the claim procedure does not lead to incorrect decision-making, therefore, the defendant cannot, on this basis, demand a change or cancellation of the decision (part 3 of article 270 of the Arbitration Procedure Code of the Russian Federation).

Violation of the pre-trial order is considered by the law to be an abuse of procedural rights. Therefore, the burden of court costs can be attributed to the offender, regardless of the outcome of the dispute (part 1 of article 111 of the Arbitration Procedure Code of the Russian Federation). Typical violations of the pre-trial order are:

• missing the deadline for filing a claim,
• violation of the deadline for responding to a claim,
• ignoring the claim.

Claim and limitation period

According to paragraph 3 of Art. 202 of the Civil Code of the Russian Federation, the course of the limitation period is suspended for the period established by law for the settlement of the dispute out of court. Judicial practice confirms that the parties' compliance with the mandatory claim procedure is not counted within the limitation period, actually extending it for this period of time (determination of the RF Armed Forces dated 06.06.2016 No. 301-es16-537 in case No. А43-25051 / 2014).

If the plaintiff does not comply with the mandatory pre-trial procedure for resolving the dispute and the claim is left without consideration or returned, the limitation period continues (Article 204 of the Civil Code of the Russian Federation, clause 18 of the Resolution of the Plenum of the RF Armed Forces dated 09.29.2015 No. 43 "On some issues related to the application norms of the Civil Code of the Russian Federation on the limitation period ").

What to write in the claim

Obviously, the person making the claim wants specific performance. Consequently, the claim indicates (resolution of the Fourteenth Arbitration Court of Appeal dated July 16, 2012 No. 14AP-5180/2012 in case No. A05-4559 / 2012, ruling of the Moscow Arbitration Court dated November 16, 2016 in case No. A40-174746 / 16):

• the applicant's requirements;
• justified calculation and the amount of the claim (if it is subject to assessment);
• the circumstances on which the claims are based;
• evidence confirming the rights of the claim;
• references to the rule of law;
• list of attached documents;
• other information necessary for the settlement of the dispute.

The Ninth Arbitration Court of Appeal confirms that the content of the claim must clearly follow (decision of 12.21.2016 in case No. А40-30878 / 16):

• the essence and justification of the claims (the circumstances on which the claims are based);
• price;
• an indication of a violation by the debtor of the law;
• an indication of the party to which such claims are made.

If this data is not available, the court may consider that the sent document is not a claim, but, for example, a letter or a request. This means that the claim procedure has not been observed (determination of the Arbitration Court of the Moscow Region dated September 19, 2016 in case No. А41-39314 / 2016).

So, if the actual circumstances and grounds of the claim are not described, the court will most likely decide that the claim procedure has not been followed. For example, when there are no references to contracts, acts and other documents, and it is not clear for what period the debt arose (determination of the Arbitration Court of the Yaroslavl Region of 08/30/2016 in case No. A82-11290 / 2016).

Once the court returned the documents, because the plaintiff's letter was not named as a “pre-trial claim” and there was no warning about the intention to go to court (ruling of the Moscow Arbitration Court of 11/17/2016 in case No. A40-204062 / 16).

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In a dispute on the recovery of compensation for infringement of intellectual property rights, it is sufficient to indicate in the claim the range in which compensation can be collected: from RUB 10,000 to RUB 5,000,000. (Article 1301 of the Civil Code of the Russian Federation). Further in the claim, you can specify a specific amount, for example, 50,000 rubles. (judgment of the Intellectual Property Court dated 03.02.2017 in case No. А82-9495 / 2016).

A sample claim is given in the Example:

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Signature

The claim is signed by the applicant himself (the person who has the right to act without a power of attorney - the director) or a representative by power of attorney. But even the absence of a power of attorney will not always play into the hands of the defendant if he considers that the claim was signed by an unauthorized person.

The Eighth Arbitration Court of Appeal considered it sufficient that the claim was drawn up on the official letterhead of the claimant company. The respondent did not reply to the letter (including about his doubts about the signatory's powers). But the most important thing: the court recognized the filing of the claim by approving the actions of its representative (Article 183 of the Civil Code of the Russian Federation). Therefore, the court recognized the complaint procedure as complied with (resolution of 02/07/2016 No. 08AP-13035/2015 in case No. A75-7929 / 2015).

Applications

The claim is accompanied by documents confirming the creditor's position, if the counterparty does not have them (ruling of the Moscow Arbitration Court dated April 28, 2017 in case No. A40-56148 / 2017). The same papers will be attached to the statement of claim as evidence.

In some laws (for example, Art. 120 of the Charter of Railway Transport of the Russian Federation, Clause 1 of Art. 16.1 of the Federal Law of 25.04.2002 No. 40-FZ "On Compulsory Civil Liability Insurance of Vehicle Owners") there are provisions, by virtue of which the claim must necessarily be sent with attachments.

In the absence of attachments, the courts see a violation of the claim procedure (rulings of the Arbitration Court of the Moscow Region dated April 20, 2017 in case No. A41-8559 / 2017, the Arbitration Court of the Saratov Region dated 10.11.2014 in case No. A57-10426 / 2014).

However, a response to a complaint without attachments will confirm compliance with the pre-trial order. Thus, the FAS of the North Caucasian District took into account the real possibility (more precisely, the impossibility) of ending the conflict between the parties. Both sides took the necessary steps to resolve the dispute amicably, but to no avail. Therefore, the court must consider the claim (decision of 03/02/2011 in case No. A53-13079 / 2010).

Time limit for going to court

As a general rule, before going to court, 30 calendar days must pass from the date the claims were sent to the counterparty (part 5 of article 4 of the APC RF). The courts are always happy to relieve themselves of the burden when this deadline is not met (definitions of the Moscow Arbitration Court dated January 20, 2017 in case No. A40-227707 / 16, the Arbitration Court of the Republic of Bashkortostan dated October 31, 2016 in case No. A07-16616 / 2016 , The Arbitration Court of the Republic of Mordovia dated 06/18/2016 in case No. А39-3738 / 2016).

It often takes less than 30 days to try to settle a dispute amicably. Having received a negative response from the counterparty to the claim, you can, of course, try to go to court, since it is clear that the parties cannot avoid litigation. However, the law clearly states that a claim is filed after 30 days from the date the claim was filed. Therefore, the court retains the formal right not to consider it (to leave it without movement).

Change of pre-trial order by agreement

The parties are not entitled to exclude the need to comply with the pre-trial order. But they can agree to resolve disputes through negotiations with the help of a mediator (Federal Law of July 27, 2010 No. 193-FZ "On an alternative procedure for resolving disputes with the participation of a mediator (mediation procedure)") or another mediator (for example, a lawyer).

In the contract, you can prescribe any period for sending a response to a claim, for example, 10 or 20 days. If neither the law nor the contract establishes a different period for considering the claim, the period specified directly in the claim does not matter for its execution when filing a statement of claim (determination of the Arbitration Court of the Irkutsk Region of 04/27/2017 in case No. A19-6775 / 2017).

In the contract, you can also prescribe the procedure for sending claims, for example, by e-mail. However, the court may consider that in this case it is impossible to establish evidence of the claim by the defendant, and will leave the claim without consideration (determination of the Arbitration Court of the Republic of Khakassia dated 17.08.2016 in case No. A74-9909 / 2016).

In fact, it is important that the court can establish that the address to which the claim is sent does indeed belong to the defendant. And to accept the claim, it is enough to prove that the claim was sent to the address agreed by the parties. For example, you can take a screenshot of a sent email.

Respondent address

The address is important because the court needs proof that the claim has been sent to the defendant. Usually legally significant messages are sent to the address of the organization indicated in the Unified State Register of Legal Entities. Messages delivered to this address are considered received by the counterparty, even if he is not located at it (clause 3 of article 54 of the Civil Code of the Russian Federation, clause 1 of the Resolution of the Plenum of the Supreme Arbitration Court of the Russian Federation of July 30, 2013 No. 61 "On some issues of the practice of considering disputes related to with the reliability of the address of the legal entity ").

Organizations often operate at a different address, which is indicated in the contract. The question arises: where to send a claim? Clause 64 of the Resolution of the Plenum of the Armed Forces of the Russian Federation of 06/23/2015 No. 25 "On the application by the courts of certain provisions of Section I of Part One of the Civil Code of the Russian Federation" says that the claim must be sent to the address specified in the agreement.

If the actual address of the organization to which the claim was sent is not specified in the contract, the court will return the claim (ruling of the Arbitration Court of the Nizhny Novgorod Region dated 25.10.2016 in case No. А43-28992 / 2016).

Submission of a claim

The plaintiff must notify the court of an attempt to resolve the dispute in a peaceful manner (clause 2, part 2, article 125, clause 7, part 1, article 126, clause 2, part 1, article 148 of the Arbitration Procedure Code of the Russian Federation). Therefore, the claim must be accompanied by a claim and evidence of its sending to the defendant by mail or in another way (definitions of the Arbitration Court of the Penza Region dated 10.28.2016 in case No. A49-13326 / 2016, the Arbitration Court of Moscow dated 26.09.2016 in case No. A40-162058 / 2016). If there is no evidence of referral, the claim procedure has not been followed (ruling of the Arbitration Court of the Vologda Region dated April 17, 2017 in case No. A13-4504 / 2017).

It is important to remind here of the authority of the person who actually receives the claim. Thus, in one case, the court did not recognize as proper evidence of the delivery of the claim to the defendant, signed by an unidentified official. There was no decryption of the signature on the claim, so the court returned the claim despite the fact that the incoming document number and the date of its receipt by the organization were known (determination of the Arbitration Court of the Kemerovo Region dated August 26, 2016 in case No. A27-17570 / 2016).

In another case, the credentials of the person receiving the claim were also not confirmed. At the same time, the number and date of incoming correspondence were missing. In addition, the court noted that there is no stamp of the defendant organization on the claim submitted to it (determination of the Arbitration Court of the Irkutsk Region of 07.15.2016 in case No. A19-9140 / 2016).

It is very bad if the plaintiff sends a claim to the actual address not specified in the contract, pursuant to an oral agreement with the defendant, and the powers of the official who received the claim will not be confirmed, for example, by a power of attorney (ruling of the Arbitration Court of the Kirov region of 08/18/2016 in case No. A28 -6618/2016).

Thus, in the event of a personal transfer, the claim must be registered and signed by an official of the defendant who has the authority to do so. And on the copy of the plaintiff there must be a date of delivery (determination of the Arbitration Court of the Republic of Mari El dated 04.24.2017 in case No. A38-4149 / 2017).

However, it is best to submit a claim in a reliable and verified manner: by mail with acknowledgment of receipt and an inventory of attachments. Without an inventory, the courts consider the claim procedure unfulfilled, because they do not reliably know what kind of paper is enclosed in the envelope (ruling of the Arbitration Court of the Irkutsk Region of 09/01/2016 in case No. A19-12360 / 2016).

Sum of claims

Separately, it is worth telling how the courts relate to the difference between the subject of the claim and the content of the claim. The pre-trial procedure for resolving a dispute is considered to be complied with only if the subject of the claim and the claim is identical. This approach is confirmed by judicial practice (clause 6 of the recommendations of the Scientific Advisory Council at the Arbitration Court of the East Siberian District of 11/18/2016, no number).

Therefore, the substantive requirements in the claim are formulated in the same way as it is subsequently planned to register them in the statement of claim. The court will return the claim if, for example, in the claim the plaintiff does not demand compensation for losses along with the amount of the principal debt, but declares about it in court (determination of the Arbitration Court of the Republic of Tatarstan of 13.10.2016 in case No. A65-23714 / 2016) or indicates various amounts requirements (ruling of the Moscow Arbitration Court dated November 16, 2016 in case No. A40-162831 / 16). However, some judges believe that the coincidence of the amounts in the claim and in the claim, especially for a lasting relationship, is not necessary (resolution of the Fifteenth Arbitration Court of Appeal dated October 19, 2016 No. 15AP-15701/2016 in case No. A32-29431 / 2016).

It happens that the counterparty partially fulfills the requirements after receiving the claim. In this case, the amount of the claim and the amount of the claim will differ. In fact, the necessary measures were taken by both parties and brought a result, which means that the requirements of Part 5 of Art. 4 APC RF are complied with. Therefore, there is no need to re-write the claim.

Ground of action

The grounds for the claim and the claim, in particular the reference to the contract, must also be the same. Otherwise, the complaint procedure will be considered not followed. So, if the claimant refers to one contract, and the claims are justified by non-performance of another contract, the court has every right not to consider the application (ruling of the Moscow Arbitration Court dated 10.28.2016 in case No. A40-192447 / 16-83-1422).

Arbitrage practice

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The plaintiff's claims, contained in the claim and the statement of claim, differed in subject matter and basis. In the first case, he demanded the return of the money paid to the defendant for diagnosing the car; in the second - compensation for damage caused by unqualified diagnostics and repairs.

The court, returning the statement of claim, indicated that the claims have a different legal nature and are governed by different norms of civil law. In addition, the amount of claims in the statement of claim is 48 (!) Times higher than the amount indicated in the claim (determination of the Arbitration Court of the Irkutsk Region dated March 28, 2017 in case No. A19-4789 / 2017).

The Ninth Arbitration Court of Appeal, in its resolution dated 17.02.2017 No. 09AP-4658/201 in case No. А40-200424 / 16, indicated that the claim must strictly comply with a specific claim. The plaintiff's appeal did not contain the requirements for the defendant indicated in the claim, so it was left without consideration.

On the same day, the same Ninth Arbitration Court of Appeal, but in another case, disagreed with the first instance that the claim must strictly comply with a specific claim, canceling the ruling on leaving the claim without consideration (Resolution No. 09AP- 4348/2017 in case No. А40-203585 / 16).

Collecting interest and penalties

If the claim procedure is complied with with respect to the principal amount, it is considered to be complied with with respect to additional requirements for payment (paragraph 2, clause 43 of the Resolution of the Plenum of the RF Armed Forces dated March 24, 2016 No. 7 "On the application of certain provisions of the Civil Code of the Russian Federation on liability for violation of obligations "):

• percent under Art. 395 of the Civil Code of the Russian Federation,
• penalties,
• legal interest under Art. 317.1 of the Civil Code of the Russian Federation.

This clarification is actively used by the courts. They reject the defendants' references to non-compliance with the pre-trial procedure for resolving the dispute (decisions of the Third Arbitration Court of Appeal dated 07.19.2016 in case No. A33-23211 / 2015, the Arbitration Court of the Ural District dated 10.10.2016 in case No. A50-30916 / 2015).

Unfortunately, some courts do not resolve disputes if the amount of the claim is less than the amount of the claim due to a forfeit for subsequent periods (determination of the Arbitration Court of the Chuvash Republic of 06/15/2016 in case No. A79-5458 / 2016, ruling of the Arbitration Court of the Moscow District of 01/13/2017 No. F05-21905 / 2016 in case No. A40-166470 / 16).

The plaintiff can indicate the exact amount of the principal debt, demand payment of interest or forfeit, and warn the counterparty that the amount of claims will increase if the disagreement has to be brought to court. Accordingly, already in court, the sanctions are recalculated or the requirements are formulated in such a way that the plaintiff asks to collect interest (forfeit) at the rate of, for example, 0.1% of the principal amount on the day of the actual execution of the decision.

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A claim for the recovery of only the amounts of sanctions will be considered only after compliance with the claim procedure.

Change in claims

The issue of changing the requirements in the litigation is quite difficult. Article 49 of the Arbitration Procedure Code of the Russian Federation allows the plaintiff to change the initially stated claims: increase or decrease their size, as well as change the subject or basis of the claim. The Code does not provide for mandatory compliance with the complaint procedure when requirements change.

Nevertheless, the plaintiffs are in danger of being denied the relevant petition. Some courts use the complaint rule as an excuse to deny a claimant an increase or change in its claims. They refer to the discrepancy between the content of the claim and the new requirements (decision of the Arbitration Court of the Amur Region dated April 20, 2017 in case No. А04-1819 / 2017, determination of the Moscow Arbitration Court dated November 17, 2016 in case No. А40-85021 / 16).

Some courts advocate procedural economy and do not recognize the arguments of the defendants about non-compliance with the claim procedure when the requirements are changed. Thus, the Arbitration Court of the Moscow District noted that the increase by the plaintiff of the collection period is not a violation of the claim procedure (resolution of 08/09/2016 in case No. A40-124879 / 2015).

In another case, the court reasonably noted that, given the ongoing relationship of the parties, it was not possible to file a monthly claim for the increased amount of debt. Therefore, the defendant's petition to leave part of the claim without consideration was rejected (decision of the Arbitration Court of St. Petersburg and the Leningrad Region dated 19.12.2016 in case No. A56-67145 / 2016).

Counterclaim

It is known that a counterclaim is filed according to the general rules for filing claims (part 2 of article 132 of the APC RF). This means that a claim must be filed before submitting it.

In practice, the defendant is actually deprived of the opportunity to file a counterclaim due to the lack of time for pre-trial settlement of the dispute (determination of the Ninth Arbitration Court of Appeal dated 08.02.2017 No. 09AP-292/2017-GK in case No. A40-97252 / 16).

As a result, the courts consider two separate cases, and instead of reducing the burden on them, on the contrary, increases. Moreover, leaving the counterclaim without consideration not only does not lead to proper protection of the rights and legitimate interests of the plaintiff, but also complicates his access to justice.

Abuse on the part of the defendant

It is no secret that the defendants use any means to delay the process. Procedural tricks are often viewed by the courts as an abuse of the right. A statement of non-compliance with the complaint procedure may be part of the arsenal of unscrupulous defendants. As an example, we can cite the situation when the claim was filed in March 2012, and the petition to leave it without consideration due to non-compliance with the claim procedure was filed only in December 2013.The Supreme Court of the Russian Federation concluded that the defendant simply did not want to voluntarily and promptly settle the dispute out of court. In this situation, leaving the claim without consideration would infringe on the rights of the plaintiff (determination of 23.07.2015 No. 306-ES15-1364 in case A55-12366 / 2012).

Compliance by the plaintiff with the complaint procedure may give the defendant time to withdraw assets or initiate its own bankruptcy. The plaintiff will be left with nothing, even after receiving a positive court decision. Knowing about such a risk, the plaintiff has the right to ask the court to take preliminary interim measures (Article 99 of the APC RF). They will help preserve the property of the defendant at the time of the decision. But there is one snag when making a corresponding petition. It lies in the timing. The statement of claim must be filed within 15 days from the date of the interim measures. This period has not been extended to 30 days, which are necessary to comply with the claim procedure. Thus, a gap is created in the security mechanism, and the debtor still gets time to hide the property. Not to mention the fact that persuading the court to take interim measures can be problematic.

Conclusion

Practice shows that courts often formally approach the provisions of procedural legislation and do not accept statements of claim due to non-observance of the claim procedure. Therefore, even in such disputes as the recognition of the terms of the contract as invalid, it is necessary to send a claim to the counterparty. Suddenly it will be possible to agree, and the opposing party will agree to change or exclude the controversial condition.

Since a statement of claim is being prepared on the basis of the claim, their subject matter and basis must be identical. You need to remember about other requirements: attach a copy of the claim to the claim, as well as a receipt for sending the letter and an inventory of the attachment.

It is clear that the pre-trial procedure is more convenient for both the court and the bona fide side of the conflict. It allows you to maintain partnerships, saves financial, time and labor resources. Suffice it to say that the losing side in court, in addition to satisfying the basic requirements, will also have to reimburse the adversary's legal costs.

The complaint procedure is a special conciliation procedure. It is carried out by the parties to the conflict independently. One party submits a written claim to the other, and the recipient, in turn, responds to it.

The essence of the procedure

The essence of the claim procedure lies in the fact that the defendant is presented with requirements in advance, before the plaintiff applies to the court. To a certain extent, this procedure is beneficial to both parties. In particular, the defendant gets the opportunity to fulfill the claims of the plaintiff on a voluntary basis. This, in turn, allows him to avoid additional costs if the conflict is resolved by an authorized authority. The claim procedure contributes to the formation of the evidentiary base if the parties failed to resolve the differences on their own.

Classification

The claim procedure can be:

1. Mandatory, established by the Federal Law.
2. Regulatory. Recommendations about it may be present in federal law and other regulations, but it is not considered mandatory.
3. Negotiable. This procedure is provided by the parties in the agreement between them.
4. Noticeable. This kind of procedure is used in the absence of instructions in the regulation or agreement.

Categories of conflicts

A mandatory claim procedure for resolving disputes is established for relations arising in the field of transportation:

A claim procedure for resolving a dispute is mandatory if there are violations in the field of postage and the provision of communication services. Preliminary measures to eliminate the conflict are carried out upon presentation of requirements for termination or amendment of agreements. For example, under Art. 745, clause 3 of the Civil Code, the contractor has the right to insist on the replacement of unusable equipment or material by the customer. The latter's refusal to meet the requirements or evasion of an answer to them allows the former to terminate the contract and count on reimbursement of the cost of the work performed.

Another example is Art. 484 CC. Clause 3 of the rule provides for the seller to make claims to the buyer when the latter does not accept the goods, thereby violating the terms of the contract. The preliminary procedure is also necessary when it is spelled out in the agreement. At the same time, it should be borne in mind that in the contract, the mandatory claim procedure (agreement or other document signed by the parties and determining the terms of the transaction) must be clearly recorded. There should be no ambiguity in the interpretation of the provisions.

Record form

In situations where a mandatory complaint procedure is applied, the law is assigned a regulatory role. For a relationship in which such a procedure is fixed by agreement of the parties, it is necessary to take into account a number of nuances. First of all, it should be said that contracts on the claim procedure are used quite often. As a rule, the parties to the transaction draw up this agreement as independent conditions and prescribe them in the main contract. Why do you need to know this nuance? This is necessary in order to be vigilant and understand how to behave in the event of abuses by counterparties. For example, subjects often indicate that it is unacceptable to file a claim until the mandatory claim procedure is completed.

The prerequisite record may look different. For example, in the agreement, the parties indicate that all disagreements will be resolved through negotiations in accordance with applicable regulations. If it is impossible to resolve the conflict peacefully, it will be considered in an arbitration court. In this case, some conditions may be provided. For example, the agreement states that the plaintiff must comply with the mandatory complaint procedure, regardless of whether such an opportunity is lost or not.

An important point

Determining the mandatory claim procedure, the APC previously allowed leaving the claim without consideration, if the opportunity to perform the preliminary measures was not lost. According to the norms in force today, this circumstance does not matter. The mandatory complaint procedure ensures the collection of the evidence base for the plaintiff. If the preliminary measures have not been completed, then the authority authorized to resolve the conflict will not accept the statement from the plaintiff. In addition, the mandatory complaint procedure provides that the costs are borne by the one who did not respond to the claims.

Difficulties in practice

Is the complaint procedure obligatory if it is not clearly spelled out in the agreement? The opinions of the instances empowered to deal with conflicts differ. So, some believe that the claim procedure is mandatory if its conditions are clearly spelled out in the agreement. Others are of the opinion that any mention of the need for preliminary conciliation measures is sufficient. Recently, the authorities have indicated the need for a detailed description of the procedure in the document. This position is most clearly expressed in the Resolution of the Federal Antimonopoly Service of the Moscow Federal District. In particular, the document says that the claim procedure is mandatory in cases where the agreement defines specific requirements for the form of appeal, the rules and timing of its sending and consideration. Other conditions on preliminary conciliation measures can be recognized as established if there is a clear record of this in the document. An indication of the conduct of negotiations to eliminate the conflict that has arisen cannot be regarded as the establishment of a mandatory claim (pre-trial) order.

From the above, conclusions can be drawn. Thus, the agreement defining the mandatory pre-trial (claim) procedure must contain a clear indication of the type of conciliation procedure. In addition, the parties are obliged to fix some deadlines in it. For example, this is the period for filing and reviewing claims. It is also permissible to refer to a normative act providing for cases of a mandatory claim procedure for resolving disputes. An analysis of practice shows that the authorities have recently adhered to this very point of view.

Concretization

The agreement may determine that the claim procedure for resolving a dispute is mandatory in the event of only certain violations. For example, the parties to the transaction prescribe in the document that a preliminary conciliation procedure is carried out for conflicts arising in the execution of the terms of the contract regarding quality, shortage, loss of shipped goods, payment of the cost of products or fines. This means that for other requirements, you can immediately file a statement of claim.

Rules for processing an appeal to the violator of the agreement

If the claim procedure for resolving a dispute is mandatory, it is necessary to correctly draw up requirements for the counterparty. The appeal must indicate:

Despite the fact that the regulations do not define specific requirements for the content, it is necessary to state the circumstances clearly and as succinctly as possible. The essence of the claim must be clear to the addressee. In this case, emotional expressions should be avoided.

Key terms

In situations where the pre-trial (claim) procedure for resolving disputes is mandatory, certain requirements must be met so that it can subsequently be considered properly implemented. These conditions include the following circumstances:

The timing

The period during which it is allowed to file a claim is established by law. If the normative act does not specify the term, then it is determined by agreement of the parties. Compliance with the period acts as one of the factors influencing the general conclusion on the issue of meeting the requirements of the claim procedure as a whole. In this regard, the significance of the term condition should not be underestimated, regardless of whether it is defined by a regulatory act or an agreement. The importance of the period is due to the fact that the time spent on the settlement of claims is included in the limitation period. Consequently, part of the period provided for the implementation of the protection of interests and rights is reduced. For the correct calculation of the period, one should be guided by the rule. The date of submission of claims is the number:

• indicated on the postmark of the sender's mail about the acceptance of the letter;
• direct delivery to the addressee;
• messages by fax or other means of communication.

Application form

The claim must be in writing. This rule is enshrined in many Federal Laws. So, the prescription for the written form of the claim is established:

1. In the Air Code (art. 127, p. 1).
2. Federal Law "On the seaports of the Russian Federation (Article 25, Part 3).
3. Merchant Shipping Code (art. 405, p. 1).
4. Federal Law "On transport and forwarding activities" (Art. 13, p. 3).

Also, this requirement is defined in the regulatory enactments that recommend the claim procedure. For example, the prescription is present in the Federal Law "On Communication" (Art. 44, p. 3). The writing requirement applies to all types of claims. This is due to the fact that this type of appeal ensures the realization of their protective potential and forms the necessary prerequisites for their subsequent use as evidence in the consideration of the case. The written form involves the preparation of one paper, which will contain all the details, including the text of the claim itself.

Additionally

The addressee of the claim must be a subject who is supposed to be a direct violator of the civil rights and interests of the applicant. If the appeal is directed to another person (a management company, for example), then it cannot act as a proper requirement. In accordance with the general rule, the claim is sent to the address of the offender's location (place of residence, if he is an individual entrepreneur). This prescription comes directly from the Federal Law. So, according to Art. 161, clause 2 of the Code on Inland Water Transport, requirements arising from non-fulfillment of agreements related to the carriage of passengers, cargo, baggage or the transport of towed objects are presented at the location of the carriers / towing vehicles.

Consequences of failure to comply with preliminary conciliation measures

First of all, non-observance of the claim procedure is an obstacle to filing a claim. If the conciliation procedure is provided for in the agreement or is determined by the rules, the claims are transferred to the authorized instance only after the implementation of appropriate measures. The claim procedure must be followed, regardless of who the applicant is - the consignee or the sender, the contractor or customer, the supplier or the buyer, etc. The claim may be returned to the sender. The agro-industrial complex has not directly established such a possibility. However, the return of the claim follows from the rules. According to Art. 126, clause 7 of the Code, documents must be attached to the application, which confirm the plaintiff's compliance with the claim procedure. According to Art. 128, h. 1, the authorized authority, having revealed a violation of the instructions provided for in and 126, leaves the submitted application without movement. If the circumstances that caused such an action are not eliminated, and they, in turn, cannot be eliminated, since the proper procedure has not been observed, the claim must be returned. If it was accepted for production, then with the indicated violations, it is left without consideration. Regardless of the outcome of the proceedings, legal costs are borne by the entity that did not fulfill the requirements within the framework of the claim procedure.

Failure to carry out the preliminary conciliation procedure affects the amount of satisfaction of the application. This provision is confirmed by Art. 483 p. 2 of the Civil Code. In accordance with the norm, if the buyer skips the period during which he can make a claim for the quality or quantity of products, the seller may refuse to satisfy the requirements for the provision of missing products or replacement of defective goods. In this case, the latter will need to prove that due to non-fulfillment of the prescribed conditions by the buyer, it became impossible to take appropriate actions in favor of the acquirer, or this would entail disproportionate costs in comparison with those that he would have incurred if he had been notified of the violation in time.

Conclusion

Among the most common claims, the following requirements should be highlighted:

1. Arising from breaches of the terms of a supply or carriage agreement.
2. According to the calculations for the services rendered, work performed, rent.
3. Regarding violations of the work contract.

The conciliation procedure includes:

1. Preparation of relevant documents and sending a statement to the debtor.
2. Consideration of the received claim and making a decision on it.

The rules of the conciliation procedure provide for the preparation of a written appeal to the offender. In it, the stakeholder sets out clear requirements, justifies them. Within a month or within the period specified in the agreement, the addressee gives an answer. If it is not received or does not satisfy the interests of the author, he has the right to apply to the court to consider the dispute on the merits.

Carrying out entrepreneurial activity is impossible without the occurrence of controversial and conflict situations between the parties to the agreement. However, conflicts can arise between:

• Entrepreneur and entrepreneur;
• Private entrepreneur and consumer;
• Entrepreneur and government agencies.

To resolve them, it is not necessary to go to court (and the participation of the court most often causes serious problems for professional market participants: payment of state duties, lengthy lawsuits, and so on).

But at the same time, the claim procedure for resolving disputes in an arbitration court is an option that allows the parties to get maximum efficiency at minimum costs on their part.

What is a claim? How is it drawn up? How does it work? What opportunities does it provide?

The legal literature clearly states: a claim is an appeal made in writing by one entity to another, in which the stated requirements are written (compensation for losses, compensation for losses, delivery of goods of proper quality, and much more).

When is the complaint procedure established?

There are 2 cases where the complaint procedure is used to resolve disputes:

• This is expressly provided by the agreement of the parties;
• This is prescribed at the Federal Law level.

For a better understanding of the essence, we present a table.

Examples of registration of the binding nature of the claim procedure in the contract	Cases of appeal to the claim procedure established at the level of legislation
All disputes ... the parties undertake to resolve through negotiations;	Carriage contract;
Within # days from the moment the disagreement arose, the party to the dispute sends another message about the claims that have arisen against it ...	Collection of compulsory payments from a business entity;
	Disputes about making additions and changes to the agreement and others.

The subjects have the right to apply to the arbitration court only after they have complied with the claim procedure for resolving disputes.

So is it profitable or not very beneficial to use the complaint procedure for resolving disputes for business entities?

Benefits of using the complaint procedure	Disadvantages of using the claims order
The ability to relieve the parties from the need to go to court to resolve the issue;	A serious increase in the time from the moment the wrongful act was committed until the moment of going to court (the course of the statute of limitations and other difficulties);
Faster settlement of issues and removal of mutual claims;	The risk of incurring even more losses for the injured party.
The ability to analyze the position of the party in order to roughly represent the position in court, collect documents and evidence.

What will happen if the claim procedure for resolving disputes in an arbitration court is not followed?

The legislation directly establishes: regardless of how the complaint procedure was established (by court or in accordance with the norms of the concluded agreement), it becomes binding on the parties. Failure to comply with the claim procedure for carrying out activities automatically entails the occurrence of consequences unfavorable for the parties to the contract.

Attention! If the parties are unable to provide the court with evidence of attempts to settle the dispute in a complaint procedure, then the submitted statement of claim is considered to be of an unspecified form. This automatically entails the emergence of legal consequences:

• Return of the submitted application to you (if the case is being considered in accordance with the requirements of the Civil Procedure Code);
• Leaving your application without progress (if the consideration of the case is carried out in an arbitration process).

This means that the plaintiff will have to file a claim again (which significantly increases the time frame for the consideration of the case). The deposited amount of the state fee is either set off when re-filing a claim, or returned to the plaintiff.

How is the claim procedure carried out?

When a mandatory claim procedure for resolving disputes is established, all the subtleties of the procedure are prescribed at the level of the contract or legislation. But as standard there is a simple scheme according to which the parties interact:

1. A claim arises that the parties to the transaction need to settle;
2. The injured party directs her to the other;
3. A so-called disagreement protocol is drawn up, in which the parties once again discuss requirements and preferences;
4. On the basis of the protocol of disagreements, the dispute will be settled.

Of course, it takes a long time to fully resolve issues (and this is often not very beneficial to the injured party, since it carries serious risks in this case).

In case of deviation from the protocol of disagreements signed by the parties (or if it is impossible for the parties to reach agreement on the subject of the dispute), the case is referred to the judicial authorities.

Thus, we have analyzed the claim procedure for resolving disputes in the arbitration process. At the same time, there are a lot of subtleties in terms of notification time, fulfillment by the parties of their obligations and other subtleties.

The use of the complaint procedure by the parties allows the parties to agree on the interests of the parties, to resolve the conflict that has arisen at the stage of its inception, to identify fundamental differences that are subject to further resolution in the judicial authorities. The settlement of issues at the level of the disputing parties contributes to the active strengthening of cooperation between counterparties.

What subtleties are important to prescribe at the level of the contract?

1. Obligation of the parties to comply with the established order (plus special sanctions for its violation);
2. Terms for filing claims (if they expire, then the injured party is deprived of the right to participate in the performance of work);
3. Terms of consideration of claims and sending a response to the second party;
4. The subtleties of drawing up a protocol of disagreements, the obligation to comply with it;
5. The exact list of documents that must be sent along with the submitted claim;
6. Negotiations, appeal to an arbitrator and other possible forms of cooperation between the parties to resolve conflicts;
7. The obligation to fulfill the agreements reached by the parties (and the responsibility that occurs in case of refusal to cooperate).
8. Attention! If the agreement does not provide for a sanction for refusing to fulfill the agreements reached, it can be considered that there is no agreement either. Any action must be confirmed by full awareness and the possibility of incurring legal responsibility.

How to make a claim correctly?

A competent requirement written in the claim is the ability to bring the counterparty to justice. The correct document contains the following information:

1. List + description of all those violations committed by the partner. Of course, with references to the norms of legislation, agreement and other acts that are important specifically for your case;
2. Clearly and clearly stated requirements. You can literally point by point;
3. An indication of the emergence of responsibility for actions (for example, if the debt is overdue, a penalty starts to flow + you have the opportunity to go to court);
4. Sending by letter with notification. This once again confirms the fact that your counterparty has been notified of intentions. The letter of notification will be worthy of evidence in the judicial authorities.

These are the main subtleties that are important for the party submitting a claim to the counterparty's name.

7 nuances to keep in mind when filing a claim and entering into litigation

1. Sometimes, in order to file a claim, the restoration of documents is required. The concluded contracts, certificates, invoices and other documents are often lost, and you will have to do everything possible to return them. Otherwise, it will be very, very difficult to prove to the counterparty that you are right;
2. After drafting and submitting your claim, you should take a short pause. The partner needs to weigh all the subtleties, all the nuances, and then send you an answer. If the drawn up and sent claim did not bring you the desired result, get ready for the implementation of the trial in your case;
3. Do not forget to pay attention to the limitation periods, their interruption;
4. Clearly outline the amount of damage you need to receive from the counterparty. Of course, he will not be able to get away from the main debt. But additional penalties, fines and other sanctions should be calculated in detail;
5. Remember that the court has the right to reduce the correct and reasonable amount even by 100%. Such a right is granted to him in accordance with the norms of the Civil Code (specifically - Art. 333). Practice shows that the judicial authorities very often use the provisions of the article.

Procedural proceedings between legal entities cannot be called simple. It forces lawyers to actively work to defend the interests of the company, ensure its growth and other subtleties. Here it is important to eliminate the conflict at the local level, so that it does not "grow" further, so that you do not have to turn to government agencies and the court for an answer to the question of who is right after all.

We can say that this procedure takes time to comply with, and slows down the process of restoring violated rights. In our article, we will look at how to resolve contractual differences with the help of a pre-trial claim.

Claim (pre-trial) order: general concept

The claim procedure is the writing of a written demand (claim) to eliminate the violation of the obligation, addressed to the debtor, seller of goods or service provider.

This procedure for the settlement of disputes under contractual relations implies the implementation of consecutive actions, when the parties independently, before the start of a possible legal proceeding, try to eliminate the disagreements or violated rights that have arisen. In fact, one of the parties whose rights have been violated draws up a document in which it sets out its vision of its point of view on the dispute, and advises the addressee of a way out of the current situation.

Options for resolving the conflict using the claim procedure can be spelled out in:

• in the contract (in this case, drawing up and sending a claim before filing a statement of claim is mandatory);
• in the current legislation.

In the case of a legislative requirement for a pre-trial procedure for resolving a conflict situation, such a procedure will be mandatory in relation to all disagreements related to certain norms of law.

In what cases is the pre-trial (claim) procedure required?

Referring to the Civil and Arbitration Procedural Code of the Russian Federation, Article 135 of the Civil Code of the Russian Federation and 129 of the Arbitration Procedure Code of the Russian Federation, where it is said that failure to comply with the claim procedure for resolving disputes in legal relations will be the reason for returning the claim back to the applicant or leaving the claim without movement (Article 222 of the Code of Civil Procedure of the Russian Federation and Article 148 of the Arbitration Procedure Code of the Russian Federation).

In addition, you need to familiarize yourself with the list of controversial situations, in the event of which you need to refer to the legislative framework, and look at the requirements for fulfilling the claim procedure for resolving the conflict. Remember that compliance with this procedure is provided not only in civil law, but also in arbitration, administrative and tax legal relations.

In accordance with Article 4, Clause 5 of the APC RF, a dispute arising in the process of civil legal relations can be referred to an arbitration court for a decision only after the opponents have complied with pre-trial settlement measures after 30 days from the date of sending the claim, if other terms and procedures does not provide for the current legislation, except in cases:

• when revealing facts containing legal significance;
• when considering cases on the recovery of compensation for violation of the right to legal proceedings or the right to execute a judicial act within a reasonable time;
• when considering insolvency (bankruptcy) cases;
• corporate dispute cases;
• cases on the protection of the legitimate interests of a group of persons;
• cases on early termination of legal protection of a trademark if it is not used;
• cases on challenging the decisions of arbitration courts.

Disputes of an economic nature that have arisen as a result of administrative and other public legal relations may be submitted to the arbitration court for resolution, after observing the claim procedure, if it is established by federal law.

Free legal advice:

In addition to the above, a mandatory claim (pre-trial) procedure for resolving a dispute is required in the following cases, indicated in the table below:

Permissible period for consideration of a claim

On collection of compulsory payments and sanctions

Part 2 of Article 213 of the Arbitration Procedure Code of the Russian Federation

Part 1 of Article 286 of the RF CoAC

On the collection of tax arrears from individuals. persons

Free legal advice:

On the collection of tax fines and singing from individuals. persons and legal entities Persons (if extrajudicial procedure is prohibited)

paragraph 2, part 1, article 104 of the Tax Code of the Russian Federation

On the collection of insurance premiums, fines, penalties

On the collection of customs payments (duties, taxes)

Appealing claims and acts of tax authorities

Free legal advice:

Appealing refusals when registering legal entities and individual entrepreneurs

paragraph 2, part 1, article 25.2 FZ-129

When concluding a contract without fail

When changing or terminating the contract

Upon termination of lease agreements

Free legal advice:

Upon termination of eviction and rental agreements

Part 4 of Art. 687 of the Civil Code of the Russian Federation

Part 1 of Art. 91 ZhK RF FZ-188

Upon termination or amendment of the alimony payment agreement

Part 4 of Art. 101 RF IC

Free legal advice:

Upon termination of the bank account agreement

paragraph 1, part 2, article 859 of the Civil Code of the Russian Federation

In case of disagreement on state or municipal contracts

Part 3 of Art. 528 of the Civil Code of the Russian Federation

When concluding a supply contract for the needs of the state or municipalities

Free legal advice:

Part 4 of Art. 529 of the Civil Code of the Russian Federation

When making payments under compulsory OSAGO contracts

paragraph 3 of part 1 of article 19 of FZ-40

Part 1 of Art. 797 of the Civil Code of the Russian Federation

For air freight and mail

Free legal advice:

Part 3 of Art. 124 Air K. RF

For railway transportation of goods

When transporting cargo and passengers

When transporting cargo by sea

Part 1 of Art. 403 KTM RF

When transporting by inland waterway transport

Part 1 of Art. 161 KVVT RF

Under agreements on freight forwarding (claims to the forwarder)

Under contracts for the transshipment of goods

Easement Disputes on Land or Building

Free legal advice:

Part 3 of Art. 274 of the Civil Code of the Russian Federation

Part 1 of Art. 277 of the Civil Code of the Russian Federation

Under the concluded contracts of communication services

Under not concluded agreements (roaming) of communication services

By mail within one locality 5 days, for the rest 2 months

Free legal advice:

Under agreements with a tour operator

In the field of standardization on deviations of the draft preliminary national standard

Video about pre-trial (claim) dispute resolution:

How to make a claim

The main essence of the claim procedure lies in a correctly formulated and directed claim to the party who violated the legal relationship (terms of the contract). The law does not have a clear form for this document, so the text of the claim is drawn up in the form of a simple written appeal. Taking into account the conditions of the claim procedure for resolving the dispute, the following information must be entered in the appeal:

1. Describe how the legal relationship arose as a result of which disagreements arose. This refers to the date of the conclusion of the contract and its serial number, and the details of the parties.
2. As a result, it became necessary to draw up a claim (the amount of the debt and how it was formed, what is the violation of the terms of the contract).
3. Proposals of options for a way out of this situation (how to resolve the dispute), and the time period given for this.
4. The standard mention of the fact that the pre-trial procedure has been complied with and in case of refusal to fulfill the contractual conditions, will be followed by filing a statement of claim in court.

If you have any questions, you can ask them in the comments to the article.

Free legal advice:

Copywriter of the RukaZakona.ru portal. I am writing articles, looking for interesting information and suggesting ways of its practical application by citizens of the Russian Federation in certain legal issues.

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What is the claim procedure under the Civil Code of the Russian Federation?

A claim procedure for resolving disputes can have positive aspects, both the ability to resolve differences without contacting the servants of Themis, and negative aspects, when the mandatory pre-trial procedure delays the moment of the actual restoration of violated rights. We will tell you about what a pre-trial claim is and how to settle contractual contradictions with it in this article.

What is the claim procedure for resolving disputes

The claim procedure for resolving conflicts within the framework of contractual relations is a sequence of actions when the parties on their own, without recourse or before going to court, try to restore violated rights or settle differences that have arisen. In fact, the claim procedure consists in the fact that one of the parties to the relationship, as a rule, the one that believes that its rights have been violated, applies to the other party with a special letter - a claim. In the claim, the sender explains his position and offers the recipient options for resolving the dispute.

Free legal advice:

The way out of the conflict using the complaint procedure can be provided:

• in the contract (and then appeal to the opponent with a claim before sending the statement of claim to the court becomes mandatory for the parties to the transaction);
• in law.

In the event of a legal requirement for a claim procedure for resolving a conflict situation, such a pre-trial procedure becomes mandatory in respect of all disputes related to certain norms of law.

It is important to understand that the common phrase "the parties have agreed to resolve all arising disputes through negotiations", which can often be seen in contracts of any kind, cannot be considered as establishing a claim procedure for resolving disputes. In order to negotiate in the contract the obligation of pre-trial settlement of disagreements (claim procedure), it is necessary to determine the form of the claim document, establish the time frame for filing a claim and the time given for responding to it, as well as the procedure for going to court.

The claim procedure is obligatory in what kind of proceedings?

According to Art. 135 of the Civil Procedure Code of the Russian Federation and Art. 129 of the Arbitration Procedural Code of the Russian Federation, failure to comply with the claim procedure for clarifying legal relations entails the return of the statement of claim to the person who applied to him in court or leaving the claim without consideration (Article 222 of the Code of Civil Procedure of the Russian Federation and Article 148 of the Arbitration Procedure Code of the Russian Federation).

Meanwhile, the list of controversial situations in which the law establishes a requirement for a pre-trial claim procedure for resolving the conflict is quite extensive. This applies not only to relations within the framework of civil law, but also to tax, arbitration, and administrative legal relations.

Free legal advice:

The claim procedure (Civil Code of the Russian Federation) in the framework of civil proceedings is mandatory in cases of such disagreements:

1. When concluding a contract without fail (Article 445 of the Civil Code of the Russian Federation).
2. On termination or changes in a contractual document (Article 452 of the Civil Code of the Russian Federation).
3. Upon termination of the lease agreement (Art. 619).
4. In the event of a break in employment and eviction (Art. 687 of the Civil Code of the Russian Federation and Art. 35, 91 of the Housing Code).
5. Changes to the alimony agreement or the termination of its validity (Art. 101 of the Family Code).
6. Upon termination of a bank account transaction.
7. When making a deal under a government contract or a municipal contract.
8. With regard to insurance payments under OSAGO.
9. For cargo transportation, rail, road, sea and air transportation.
10. Associated with the delivery of correspondence by mail.
11. For the carriage of goods by inland waterway transport.
12. With regard to the carriage of passengers by road.
13. If there are claims to the forwarder.
14. For transshipment of goods.
15. With regard to easements to land or buildings.
16. For the provision of communication services.
17. If there is a claim to the tour operator.
18. On standardization issues (on the rejection of the draft of the preliminary national standard).

How to prepare a claim

The claim procedure essentially consists in filing a claim with an opponent. Legislative acts do not contain a mandatory form of a claim document, therefore, it is drawn up in the form of an ordinary written appeal. Observing the claim procedure for resolving the dispute, the following must be described in the claim:

1. The basis for the emergence of legal relations, about which there was a misunderstanding. That is, the date and number of the concluded agreement, the names of the parties are indicated.
2. Reasons that led to filing a claim (the amount of debt and the procedure for its formation, what is the failure to provide services or non-performance of work, etc.).
3. Options for resolving the problem (how you can fulfill obligations) and terms.
4. Mention that the complaint procedure has been complied with and further failure to comply with the contractual norms will entail an appeal to the court.

It is important to know: in order to prove in court the pre-trial claim procedure for resolving the dispute, you must send the claim by registered mail with a notification (the proof will be the returned notification), or hand it over to the opponent in 2 copies against signature (the proof will be a copy with a signature and the date of acceptance).

Mandatory claim, pre-trial dispute settlement procedure provided for by Russian law.

A claim or other pre-trial procedure for resolving a dispute is mandatory in cases stipulated by law or agreement (part 5 of article 4 of the Arbitration Procedure Code, hereinafter (APC) of the Russian Federation, paragraph 7 of article 132 of the Civil Procedure Code, hereinafter (CPC) of the Russian Federation, part 3 of article 4 of the Code of Administrative Procedure, hereinafter (CAS) RF). From June 1, 2016, the claim (pre-trial) procedure for the settlement of most civil disputes has become mandatory in the arbitration process.

Free legal advice:

The claim procedure for the settlement of a dispute is a special (written) conciliation procedure for the settlement of a dispute by the parties to the dispute themselves, carried out by filing a claim and sending a response to it.

The pre-trial procedure is not required to be observed if cases are considered:

on the establishment of facts of legal significance (Chapter 27 of the APC RF);

on awarding compensation for violation of the right to legal proceedings within a reasonable time or the right to execute a judicial act within a reasonable time (Chapter 27.1 of the APC RF);

about insolvency (bankruptcy) (Chapter 28 of the Arbitration Procedure Code of the Russian Federation);

on the protection of the rights and legitimate interests of a group of persons (Chapter 28.2 of the APC RF);

Free legal advice:

on early termination of legal protection of a trademark due to its non-use;

on challenging decisions of arbitration courts (Chapter 30 of the APC RF);

on corporate disputes (Chapter 28.1 of the Arbitration Procedure Code of the Russian Federation);

on the issuance of a court order (Resolution of the Plenum of the Supreme Court of the Russian Federation of December 27, 2016 N 62).

If the claim (pre-trial) procedure is not observed, the statement of claim must be returned by the court (clause 5 of part 1 of article 129 of the Arbitration Procedure Code of the Russian Federation, clause 1 of part 1 of article 135 of the Code of Civil Procedure of the Russian Federation, clause 1 of part 1 of article 129 of the CAS RF), and in case of acceptance for production - abandonment without consideration (clause 2 of part 1 of article 148 of the APC RF, clause 1 of part 1 of article 222 of the Code of Civil Procedure of the Russian Federation, clause 1 of part 1 of article 196 of the CAS RF).

Free legal advice:

Consideration of disputes in court, subject to the mandatory pre-trial procedure and its terms in accordance with the Arbitration Procedure Code of the Russian Federation, the Code of Civil Procedure of the Russian Federation, the CAS of the Russian Federation:

disputes on the collection of mandatory payments and sanctions (part 2 of article 213 of the Arbitration Procedure Code of the Russian Federation of July 24, 2002 N 95-FZ, part 1 of article 286 of the CAS RF of 03/08/2015 N 21-FZ);

disputes on the collection of tax arrears from individuals (part 1 of article 48 of the Tax Code, hereinafter (Tax Code) of the Russian Federation (part one) "dated July 31, 1998 N 146-FZ);

disputes on the collection of tax sanctions (fines, penalties) from individuals, as well as from legal entities (if an extrajudicial procedure is not allowed) (paragraph 2 of part 1 of article 104 of the Tax Code of the Russian Federation (part one) "dated July 31, 1998 N 146- FZ);

disputes on the collection of customs payments (duties, taxes) (part 3 of article 150 of the Federal Law, hereinafter (FZ) of 27.11.2010 N 311-FZ "On customs regulation in the Russian Federation");

Free legal advice:

disputes on appealing decisions (claims, acts) of the tax authority (part 2 of article 138 of the Tax Code of the Russian Federation (part one) of July 31, 1998 N 146-FZ), the period for responding to a claim is 1 month;

disputes on appealing against the decision to refuse state registration of legal entities and individual entrepreneurs (paragraph 2 of part 1 of article 25.2 of the Federal Law of 08.08.2001 N 129-FZ "On state registration of legal entities and individual entrepreneurs"), the deadline for responding to a claim is 15 days;

disputes when concluding an agreement on a mandatory basis (part 1 of article 445 of the Civil Code, hereinafter (Civil Code) of the Russian Federation (part one) of 30.11.1994 N 51-FZ), the period for responding to a claim is 30 days;

disputes when changing, terminating the contract (part 2 of article 452 of the Civil Code of the Russian Federation (part one) of 30.11.1994 N 51-FZ), the period for responding to a claim is 30 days;

disputes upon termination of a lease agreement (part 3 of article 619 of the Civil Code of the Russian Federation (part two) of January 26, 1996 N 14-FZ), the period for responding to a claim is a reasonable period;

Free legal advice:

disputes upon termination of an employment contract, on eviction (part 4 of article 687 of the Civil Code of the Russian Federation (part two) of 01.26.1996 N 14-FZ, part 1 of article 35 of the Housing Code, hereinafter (LC) of the Russian Federation of 12.29.2004 N 188 -FZ, the deadline for responding to a claim is a reasonable time, part 1 of article 91 of the RF LC of December 29, 2004 N 188-FZ);

disputes when changing, terminating the agreement on the payment of alimony (part 4 of article 101 of the Family Code of the Russian Federation of December 29, 1995 N 223-FZ);

disputes on termination of a bank account agreement (paragraph 1, part 2, article 859 of the Civil Code of the Russian Federation (part two) of January 26, 1996 N 14-FZ), the period for responding to a claim is 1 month;

disputes when concluding a state or municipal contract (part 3 of article 528 of the Civil Code of the Russian Federation (part two) of January 26, 1996 N 14-FZ), the period for responding to a claim is 30 days;

disputes when concluding a supply agreement for state or municipal needs (part 4 of article 529 of the Civil Code of the Russian Federation (part two) of 01.26.1996 N 14-FZ), the period for responding to a claim is 30 days;

disputes about payments under the OSAGO agreement (part 1 of article 16.1 of the Federal Law of April 25, 2002 N 40-FZ "On compulsory insurance of civil liability of vehicle owners"), the deadline for responding to a claim is 10 days - until July 1, 2017;

disputes about payments under the OSAGO agreement (paragraph 3 of part 1 of article 19 of the Federal Law of 25.04.2002 N 40-FZ "On compulsory insurance of civil liability of vehicle owners");

disputes arising from cargo transportation (part 1 of article 797 of the Civil Code of the Russian Federation (part two) of 01.26.1996 N 14-FZ);

disputes arising from air transportation of cargo, mail (part 3 of article 124 of the Air Code of the Russian Federation of 03.19.1997 N 60-FZ), the period for responding to a claim is 30 days;

disputes arising from the railway transportation of goods (Article 120 of the Federal Law of 10.01.2003 N 18-ФЗ "Charter of the Railway Transport of the Russian Federation"), the period for responding to a claim is 30 days;

disputes arising from the carriage of passengers, cargo by road (Article 39 of the Federal Law of 08.11.2007 N 259-ФЗ "Charter of road transport and urban land electric transport"), the period for responding to a claim is 30 days;

disputes arising from the carriage of goods by sea (part 1 of article 403 of the Merchant Shipping Code of the Russian Federation of April 30, 1999 N 81-FZ), the period for responding to a claim is 30 days;

disputes arising from transportation by inland water transport (part 1 of article 161 of the Code of Inland Water Transport of the Russian Federation of 07.03.2001 N 24-FZ), the period for responding to a claim is 30 days;

disputes arising from the contract of freight forwarding (claims to the forwarder) (part 1 of article 12 of the Federal Law of June 30, 2003 N 87-FZ "On freight forwarding activities"), the period for responding to a claim is 30 days;

disputes arising from the cargo transshipment agreement (part 1 of article 25 of the Federal Law of 08.11.2007 N 261-ФЗ "On seaports in the Russian Federation and on amendments to certain legislative acts of the Russian Federation"), the period for responding to a claim is 30 days;

disputes about easement on land, on buildings (part 3 of article 274 of the Civil Code of the Russian Federation (part one) of 11.30.1994 N 51-FZ, part 1 of article 277 of the Civil Code of the Russian Federation (part one) of 30.11.1994 N 51-FZ (the rules of Art. 274 of the Civil Code apply to the burdening of servitude on buildings, structures);

disputes arising from an agreement on the provision of communication services (part 4 of article 55 of the Federal Law of 07.07.2003 N 126-ФЗ "On Communication"), the term for responding to a claim is 30 days;

disputes arising from an agreement on the provision of communication services (part 7 of article 37 of the Federal Law of July 17, 1999 N 176-ФЗ "On Postal Communication"), for postal items within one settlement, the response time to a claim is 5 days, for the rest - 30 days;

disputes about the quality of a tourist product (claims to a tour operator) (part 7 of article 10 of the Federal Law of November 24, 1996 N 132-ФЗ "On the basics of tourist activities in the Russian Federation", the period for responding to a claim is 10 days;

disputes in the field of standardization on the rejection of the draft preliminary national standard (part 15 of article 11 of the Federal Law of June 29, 2015 N 162-ФЗ "On standardization in the Russian Federation").

Samples of the necessary statements of claim and documents, reference information, can be found here: Main page.

Pre-trial settlement of a dispute in a civil procedure

Pre-trial settlement of a dispute in a civil process is the main way of resolving disputes, allowing the parties to independently find a compromise solution and (or) one of the parties to voluntarily fulfill the requirement. If for any legal relationship a law or an agreement (agreement of the parties) establishes the obligation of a pre-trial procedure for resolving a dispute, without its observance, judicial proceedings are impossible.

Obligation and non-binding nature of the pre-trial dispute settlement procedure

The law (Civil Code, APK, Code of Civil Procedure and CAS of the Russian Federation) obliges the parties to carry out a pre-trial (claim) procedure for resolving disputes, the subject of which is:

• collection of compulsory payments (taxes, excise taxes, insurance premiums), tax arrears and (or) sanctions, as well as customs payments;
• appeal against decisions of the tax authority, including acts of inspection and requirements of the Federal Tax Service;
• appeal against a decision to refuse registration of an individual entrepreneur or legal entity;
• the conclusion of the contract is mandatory;
• change or termination of the contract;
• termination of a lease or lease agreement;
• eviction;
• alteration or termination of the alimony agreement;
• termination of the bank account agreement;
• conclusion of a municipal or state contract;
• payments for OSAGO;
• cargo transportation services (cargo transportation agreement), postal delivery, passenger transportation;
• transport expedition (freight forwarder services);
• supply for municipal or state needs;
• communication services;
• tour operator services;
• violation of exclusive rights;
• other legal relationships (claims) determined by laws.

In the cases specified in the laws, the pre-trial procedure for resolving a dispute is either a claim procedure or an administrative one (appeal to a higher instance).

If one of the parties to the dispute is a state (municipal) body or its official, then the main way to resolve the dispute is to consider a complaint against a decision, action (inaction) of a lower body (person) in a higher instance. In this case, the appeal, as a rule, is preceded by the sending of a written notice (notification, letter, claim) to the person obliged to execute the decision (action), which is also part of the pre-trial settlement of the dispute.

When the parties to the dispute are citizens or organizations, the main method of mandatory pre-trial settlement of the dispute is sending claims (claim procedure) or letters (statements, complaints). In such cases, as a rule, disputes arise from the contract (agreement) or claims regarding its conclusion, execution, modification, termination.

Compliance with the pre-trial procedure for resolving a dispute may become mandatory, even if it is not provided for by law. For this, it is sufficient that such a condition is contained in the contract or agreement of the parties. At the same time, in the arbitration legislation and judicial practice, categories of cases are specially distinguished in which non-compliance with the pre-trial order is not considered a violation:

• establishing legal facts;
• awarding compensation related to the violation of the rights to legal proceedings and the execution of a judicial act;
• bankruptcy;
• corporate disputes;
• protection of the rights (interests) of a group of persons;
• consideration of the application and issuance of an order;
• recognition and enforcement of decisions of foreign courts and foreign arbitrations;
• other categories of cases.

The parties often resort to pre-trial settlement of disputes even in the absence of such a legal or contractual obligation. Negotiations, correspondence, sending and considering applications (complaints, notifications, notifications), engaging a mediator (a third party to find a compromise) and other options - the parties to the dispute have many tools and methods for resolving a dispute without a court. The main advantages of any of the approaches are the speed of settlement of the dispute and the absence of legal costs. In addition, it may be easier to negotiate outside of court proceedings.

Claim procedure

Preparation, submission and consideration of claims, their fulfillment or non-fulfillment - all these actions constitute the observance of the claim procedure for the settlement of the dispute. This is the most popular way for one party to a dispute to state their claims, and the other party to consider and make a decision on them.

From a practical point of view, it is possible to distinguish between formal and informal claims procedure for resolving a dispute. In the first case, the direction and consideration of the claim is provided for by law or an agreement (agreement), and the established procedure must be strictly observed. In the second case, the injured party prepares and sends a claim to the opponent on its own initiative. Consideration of such a claim, making a decision on it is a right, but not an obligation, therefore, the requirements can be ignored.

The overwhelming majority of agreements (contracts) concluded in Russia contain a clause on out-of-court settlement of disputes arising by sending and considering claims. This makes the claim procedure binding on the parties to the contract. If there is no such condition in the contract or a separate agreement, it is still necessary to clarify whether or not it is necessary to comply with the claim procedure by virtue of the law. Otherwise, you can be mistaken, and the court will not accept the claim or leave it without consideration.

In 2017, amendments were made to the civil and arbitration legislation regarding the claim procedure. They mainly affected the cases (claims) considered by the arbitration courts. For arbitration proceedings, the claim procedure in most cases has become the main pre-trial stage. For example, it is compulsory to file a claim in terms of claims for the collection of payments under the contract and (or) unjust enrichment. But you do not need to do this if you have to decide on the issue / receipt of a court order.

As for the observance of the claim procedure, the following rules must be adhered to:

1. Before filing a claim, it is necessary to determine whether or not it is necessary in your particular case to send a written claim to your opponent.
2. If the complaint procedure is provided, it is necessary to study the peculiarities of its observance in your particular case. Such features may follow from the specifics of legal relations - established by law or determined by an agreement, including an additional agreement to it.
3. The claim must be made in writing. Since the obligation to prove compliance with the complaint procedure lies with the plaintiff, it is necessary to immediately collect documents that can confirm this. Copies of these documents are attached to the claim. Send your claim by mail - make sure that this fact can be traced back to the dates and documents of postal registration. Pass the claim through the secretariat (office, office) of the opponent - check the registration in the incoming correspondence. The general rule is to have a mark on the delivery (sending, registration) of the claim, which can be in the form of a separate document or a stamp (handwritten text) on the second (your) copy of the claim.

The claim text is not strictly regulated. But you need to adhere to the style of business writing, clearly and clearly state the content of the dispute and requirements.

What should be in the claim:

• data of the person (organization) where the claim is sent;
• data of the person filing the claim (name, address, contact information);
• the essence of the dispute (its circumstances);
• grounds for claims, their confirmation (references to legal norms, terms of the contract);
• specific requirements, for monetary claims - their calculation;
• a reasonable period of time during which the opponent must fulfill the requirements and (or) respond to the claim - this period of time can be established by law, determined by the contract, the rules for the provision of certain services, internal regulations of the legal entity, etc., but in general you can focus on days;
• date and signature of the person who prepared the claim.

In practice, there are often some standard claims - for specific contracts, types of services, works, for certain categories of organizations (banks, insurance), etc. Samples of such claims are not hard to find on the Internet. In many organizations, taking into account the specifics of their activities, special samples of claims on certain issues have been developed. But it will not be a mistake to draw up a claim in a free-content form. The main thing is to comply with the written form, be specific in the presentation, clearly formulate the requirements and prove your case. Obscene language, insults, threats, etc. should be avoided.

Other ways of pre-trial settlement of the dispute

Complaints and administrative (appeal) procedures for resolving disputes are the only ways that are directly enshrined in the law. But this does not limit the parties, making it possible to find a compromise in a different way:

1. Negotiation is a popular but generally non-binding way of resolving disputes. In order to give legal effect to the results of negotiations, the parties, as a rule, conclude a special agreement. In other cases, either the dispute is resolved by voluntary fulfillment of the requirements, or the impossibility of resolving the dispute is stated.
2. Correspondence - private, business, claims. Goals, objectives and results are similar to negotiations.
3. Preparation and conclusion of an amicable agreement. This, as a rule, is a complex option for resolving a dispute, where negotiations, correspondence, including those of a claim nature, may involve an independent person (mediator) to resolve the situation and search for a compromise.
4. Mediation is the settlement of a dispute with the help of a mediator. Complex, complex procedure; organized and carried out on an individual basis, agreed by the parties to the dispute.

In difficult cases, pre-trial settlement is a multi-stage process. But this approach is effective only when it is obvious that it is inexpedient or unwilling to resort to legal proceedings.

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Last Updated 2017-10-24 10:19

From June 1, 2016, the claim (pre-trial) procedure for the settlement of most civil disputes has become mandatory in the arbitration process. Failure to comply with this order is the basis for returning the claim or leaving it without consideration.

What are the new provisions of the Arbitration Procedure Code of the Russian Federation on the claim procedure?

The new rules of the Arbitration Procedure Code of the Russian Federation establish: in order to apply to an arbitration court, it is necessary to observe the complaint procedure. There are exceptions, and they are listed in the code.

By virtue of Part 5 of Art. 4 of the APC RF in the new edition, as a general rule, all disputes arising from civil relations can be referred to an arbitration court after the parties have taken measures for pre-trial settlement after 30 calendar days from the date on which the claim (demand) was sent.

The agreement allows to change the term and the claim procedure itself, but the need to comply with it cannot be canceled.

It is possible to assume that this interpretation is most likely by analyzing the explanatory note to the bill, which later became Federal Law of 03/02/2016 N 47-FZ. It states: "The draft law proposes to establish in the Arbitration Procedure Code of the Russian Federation as a general rule the mandatory application of a claim or other pre-trial procedure for resolving disputes. Exceptions to this rule relate to cases, the peculiarities of the consideration of which necessitate a clause not to apply to them as a general rule of the established approach."

Economic disputes arising from administrative and other public legal relations may be referred to an arbitration court after observing the pre-trial procedure, if it is established by federal law.

When is it not necessary to follow the claim procedure?

The pre-trial procedure is not required to be observed if cases are considered:

On the establishment of facts of legal significance (Chapter 27 of the APC RF);

Awarding compensation for violation of the right to legal proceedings within a reasonable time or the right to execute a judicial act within a reasonable time (Chapter 27.1 of the APC RF);

Insolvency (bankruptcy) (Chapter 28 of the APC RF);

Protection of the rights and legitimate interests of a group of persons (Chapter 28.2 of the APC RF);

Early termination of legal protection of a trademark due to its non-use;

Challenging decisions of arbitration courts (Chapter 30 of the Arbitration Procedure Code of the Russian Federation);

On corporate disputes (Chapter 28.1 of the Arbitration Procedure Code of the Russian Federation).

It is worth noting that the arbitration courts have a restrictive interpretation of the listed exceptions. For example, in order to submit an application for the issuance of a writ of execution for the compulsory execution of an arbitral tribunal's decision, it is necessary to observe the pre-trial procedure (Determination of the Arbitration Court of the Kirov region of 06/08/2016 in case N A28-6787 / 2016). At the same time, the requirement to comply with the claim procedure does not apply, as already indicated, to a similar category of cases - on challenging the decisions of arbitration courts.

How are the new rules on complaint procedure applied over time?

In practice, a position is formed on the application of new norms over time. From the literal interpretation of the law, it follows that the procedure for mandatory pre-trial settlement applies only to disputes that, as of June 1, 2016, have not yet been referred to the arbitration court (Decision of the Arbitration Court of the Novgorod Region of 06/02/2016 in case No. А44-499 / 2016).

In what cases will the court return a statement of claim if the claim procedure is not followed?

The arbitration court shall return the statement of claim if the pre-trial procedure has not been observed upon presentation of the following requirements:

On debt collection (Definitions of the Arbitration Court of the Moscow Region dated 06/07/2016 in case No. A41-30785 / 16, dated 06/20/2016 in case No. A40-133757 / 16-65-1157, dated 06/17/2016 in case No. A40-131409 / 16-129-1143);

Recovery of unjust enrichment (Definitions of the Moscow Arbitration Court of June 14, 2016 in case No. A40-127564 / 16-113-1107, of the Chuvash Republic Arbitration Court of June 21, 2016 in case No. A79-5581 / 2016);

Recovery of forfeit (Determination of the Moscow Arbitration Court of June 14, 2016 in case No. A40-127073 / 16-113-1103, Decision of the Rostov Region Arbitration Court of June 9, 2016 in case No. A53-7613 / 2016);

Collecting interest for the use of other people's funds (Definition of the Moscow Arbitration Court dated 06/07/2016 in case N A40-125538 / 16-91-1093);

Recognition of the contract as invalid (Determination of the Moscow Arbitration Court of June 17, 2016 in case N A40-131295 / 16-129-1149);

Recognition of the contract as not concluded (Determinations of the Arbitration Court of the Khanty-Mansiysk Autonomous Okrug - Yugra dated 06/14/2016 in case No. A75-6997 / 2016, the Arbitration court of the Irkutsk region dated 06/17/2016 in case No. A19-8743 / 2016);

Obligation to provide certified copies of documents (Determination of the Moscow Arbitration Court of June 14, 2016 in case No. A40-126599 / 16-129-1096);

Obligation to transfer technical documentation on the basis of a state contract (Determination of the Moscow Arbitration Court dated 09.06.2016 in case No. A40-124471 / 16-129-1074);

Violation of patent rights (Determination of the Moscow Arbitration Court of 06/09/2016 in case N A40-124783 / 16-129-1076);

Recognition of the right to be absent (Determination of the Arbitration Court of the Vladimir Region dated June 17, 2016 in case No. A11-5738 / 2016);

Recognition of ownership (Determination of the Arbitration Court of the Republic of Khakassia dated 06/08/2016 in case N A74-6915 / 2016);

Demolition of an unauthorized building (Definitions of the Arbitration Court of the Altai Territory dated 06.21.2016 in case No. A03-10405 / 2016, the Arbitration Court of the Republic of Bashkortostan dated 06.16.2016 in case No. A07-13357 / 2016);

Reclaiming property from someone else's illegal possession (Determination of the Arbitration Court of the Chuvash Republic dated June 17, 2016 in case N A79-5536 / 2016).

The list is not exhaustive.

What are the requirements of the first instance arbitration courts to comply with the claim procedure?

The first practice of arbitration courts demonstrates that they adhere to a strictly formal approach to both the observance of the claim procedure and to proving that it has been complied with.

The pre-trial procedure is not considered to be complied with if:

The 30-day period for responding to the claim has not expired (Definition of the Arbitration Court of the Republic of Mordovia dated 06/18/2016 in case No. A39-3738 / 2016);

When filing a claim for the recovery of interest for the use of someone else's money, the plaintiff submitted a claim for the collection of a debt, on the amount of which interest was accrued (Definition of the Arbitration Court of the Chuvash Republic of 06/15/2016 in case No. A79-5458 / 2016);

It follows only from the claim that the plaintiff does not agree with the actions of the counterparty (Definition of the Arbitration Court of the Moscow Region of 06/07/2016 in case No. A41-30785 / 16);

The claim is a notification of the assignment of the right of claim (Definition of the Arbitration Court of the Perm Territory dated June 17, 2016 in case N A50-13792 / 2016).

The claim must strictly comply with the specific claim. Apparently, you need to make very detailed and structured claims with a description of each case of non-performance or improper performance of obligations.

The problem of proving that the defendant received the claim became important. The courts note: the only proof of receipt of the claim is the presence of the defendant's stamp (seal) on its copy. Other evidence may be deemed inappropriate (Definitions of the Arbitration Court of the Khanty-Mansiysk Autonomous Okrug - Yugra dated 20.06.2016 in case No. A75-7333 / 2016, the Arbitration Court of the Perm Territory dated 17.06.2016 in case No. A50-13882 / 2016). Thus, the defendant gets the opportunity to delay the resolution of the dispute: if the defendant is not interested in providing the plaintiff with such important evidence, he will be able to evade receiving the claim and confirming its receipt.

The courts also draw attention to the fact that only a person who has the authority to accept correspondence has the right to receive a claim (Definitions of the Perm Territory Arbitration Court dated June 17, 2016 in case No. A50-13882 / 2016, dated June 17, 2016 in case No. A50-13879 / 2016) ...

An extract from the website of the Russian Post does not act as evidence that a claim has been sent to the defendant (Definition of the Arbitration Court of the Perm Territory dated 20.06.2016 in case N A50-13676 / 2016).

What risk can arise if the claim procedure is followed?

Unfair counterparties may file a complaint to delay the resolution of the dispute, for example, when the statute of limitations is nearing completion. The fact is that the period of compliance with the pre-trial order is not included in the limitation period. For this period, the course of the term is suspended.

This may be especially true if, according to the contract, the term for filing a claim exceeds 30 days or the pre-trial procedure becomes significantly more complicated.

In such cases, the position of the RF Armed Forces, reflected in the Review of Judicial Practice No. 4 (2015), will come in handy. According to the court, there is no reason to leave the claim without consideration at the request of one of the parties, if the satisfaction of the request will lead to an unreasonable delay in the resolution of the dispute and infringement of the rights of the other party.

Consequently, when the pre-trial procedure is respected in order to delay the resolution of the dispute, there is no reason to leave the claim without consideration. The claim procedure is aimed at a quick resolution of the dispute; the arbitration courts will suppress the application of this procedure for the opposite purpose.