When leaving a statement of claim without progress, you need to familiarize yourself with the reasons for abandonment. One of the reasons may be that the claim was filed incorrectly or the documents specified in the law were not attached. These reasons can be eliminated by submitting documents to the court or by correcting the statement of claim within the period specified in the determination. Sometimes the courts may make an erroneous ruling; in this case, you can file a complaint against the court ruling.
USEFUL : watch the video on the issue of leaving a claim without progress or returning a statement of claim, write your question in the comments of the video
Grounds for leaving the claim without progress
Filing a claim with the court entails certain actions, for example, the claim can be accepted, returned, left without progress, or refused to accept the claim. Leaving the claim without progress means that there will be no further progress in the case until the shortcomings are eliminated, for example, the person filed the claim in the wrong form or did not attach the necessary documents. The claim may be dismissed for the following reasons:
- The application does not correspond to the form or the content of the claim is incorrect (for example, the names of persons are not indicated, the circumstances or requirements are incorrectly stated, the price of the claim, if any, is not established);
- The statement of claim has not been signed . At the same time, this rule also concerns the fact that the presence of a signature in itself can also become a reason for leaving without movement, for example, if the signature is of a person whom the Plaintiff has not authorized to sign and file a claim in court (there is no power of attorney in the application of the claim or authority in the submitted a power of attorney is not enough);
- There is no calculation of the claim price . So, if a party’s demand consists of summing numbers or applying subtraction rules, then the calculation that was made must be attached on a separate sheet. You are required to comply with this rule even if you indicate calculations in the text of the claim itself, since this defect may become a formal violation of procedural law and will lead to loss of time for correction in the future.
- No claim - when it is necessary to comply with the claim procedure. Therefore, check whether you have sent a request to the party to voluntarily resolve the dispute. After all, even if the court overlooks this defect, it may subsequently lead to more disastrous consequences in the form of leaving the statement of claim without consideration (more details at the link).
- The application is not accompanied by basic documents (for example, a receipt for payment of the state duty, copies of the number of persons participating in the case, documents on which the plaintiff bases his claims). It is important to know that civil procedural legislation provides for collecting a set of all documents attached to the application according to the number of persons participating in the case, that is, for example, if there are 2 defendants, then prepare 1 set for the court and 2 sets for the defendant. There is no need to send a copy of the application and documents to the defendant; the judicial authorities of general jurisdiction themselves transfer the documents to them (in arbitration courts, the responsibility lies with the Claimant, who provides proof of sending all materials to the parties).
In connection with the procedural reform, namely the creation of cassation and appeal courts, very important changes are being made to the codes. Changes are also made regarding leaving a statement of claim without progress, for example:
The new version will provide for attaching a receipt (notification) of delivery to persons of a copy of the statement of claim and documents (this process is now provided for in the arbitration process), that is, in fact, copies of the statement and documents will not need to be attached, the law only specifies the attachment of documents that the defendants do not have and third parties.
The changes also affected the application form, for example, the word “location” was replaced by the word “address”, that is, the plaintiff indicates his address (actual or legal), and not where it is located. Information about the defendant will need to be indicated in more detail, both an individual and a legal entity, for example, passport information, INN, OGRN, driver's license. Changes have also been made regarding compliance with pre-trial procedures (filing a claim); this rule will be provided for by law, not by contract.
USEFUL : watch the VIDEO on the rules for drawing up a statement of claim in court, so as not to get into the situation of identifying shortcomings, write your question to the lawyer in the comments of the video
Link to the article in question in the judicial act
Decision No. 2-569/2020 2-569/2020~M-161/2020 M-161/2020 dated May 29, 2020 in case No. 2-569/2020 of the Kogalym City Court can become an example of a reference to the article in question in a judicial act.
It says that the actions of the filer of the claim in court by indicating the personal data of the defendant in the statement of claim are admissible, by virtue of the provisions of Art. 131 of the Code of Civil Procedure of the Russian Federation, the claim must indicate the name of the defendant, his place of residence or, if the defendant is an organization, its location, and the absence of this data in accordance with Art. 136 of the Code of Civil Procedure of the Russian Federation becomes the basis for leaving the claim without progress.
These actions are aimed at individualizing the requirements and thereby realizing the right to administer justice on the basis of adversarialism and equality of participants in the case, which is confirmed by the ruling of the Constitutional Court of the Russian Federation dated September 28, 2017 No. 2010-O.
Time limit for eliminating deficiencies in the statement of claim
The court itself sets a deadline for eliminating deficiencies. The judicial authorities provide a reasonable period for the person to eliminate the deficiencies. When determining a reasonable period, the court usually takes into account the complexity of the case (for example, if the persons are located in another region), and the behavior of the participants in the process. Within the deadline set by the court, the person must submit all missing documents, otherwise the application may be returned. If the person complies and submits documents on time, the application will be considered submitted on the day of initial submission.
If what is requested is not available, or you do not have time to obtain it from government agencies, then you must ask the court to extend the period for correcting the deficiencies or request documents from it, providing evidence of the impossibility of obtaining what you need on your own.
The deadline for sending you a ruling on leaving without movement is set as short as possible for the court - no later than the next day for sending, but the mail can fail, often the envelopes arrive too late and the party does not have time to react. What to do in this situation? Ask for the restoration of the period for eliminating the shortcomings, unless, of course, the court has already returned the claim. Then, unfortunately, the only possible option is to resubmit it or appeal the judicial act.
How to fix problems
When the court leaves the claim without progress, an application for correction of a typo in the statement of claim or other defect that served as the basis for this allows the judicial authority to be notified that the error has been eliminated. There is no established form for this procedural document; it is important to provide:
- details of the court and the parties to the case;
- these determinations, which left the case without progress;
- the reasons listed in the judicial act;
- explanations and a request to attach additional documents and accept the claim for proceedings;
- date and signature of the authorized person.
Additional documents are provided in the form of attachments.
ConsultantPlus experts examined whether it is legal to leave a claim without consideration due to non-compliance with the claim procedure on the grounds that the claim was not sent in a valuable letter with a list of attachments. Use these instructions for free.
Private complaint about leaving the claim without progress
Civil legislation provides for filing a private complaint against a ruling to leave an application without progress. A private complaint can be filed in the event of a court error, for example, the court indicated that there were not enough missing documents, although in fact the person provided them, this occurs quite often in judicial practice, since the courts consider many cases and have a heavy workload.
A complaint is drawn up to the court that is considering the case, the judge and the number of the case in which a decision was made to leave the application without progress is also indicated. In the complaint, the person must indicate why he considers the determination illegal and unfounded; he can refer to the law, indicate that the requirements were met and that the claim should be accepted. The person must justify his position and ask the court to accept the statement of claim for consideration of the case on the merits.
Read more about appealing a court ruling at the link so as not to dwell on it in this article.
Features of application of provisions
The period set by the judge must meet the criteria of reasonableness and take into account all important circumstances on which the correction of defects may depend. The peculiarity is that the court does not return the application, does not refuse to accept it, but also does not take further procedural actions. At the time of making such a decision, the judge must make a reasoned decision.
Part 1 of the article in question introduces an exhaustive list of grounds for leaving the claim without progress. This goes beyond the requirements for the form and content of the application itself and the documents attached to it. Because of this, in its ruling the court is obliged to refer to Art. Art. 131 and (or) 132 of the Code of Civil Procedure of the Russian Federation. Of course, the deficiency that must be corrected by the plaintiff must also be indicated.
The time period allotted to the court for making an appropriate determination is not specified specifically in the Code, but within the meaning of Art. 133 of the Code of Civil Procedure of the Russian Federation, it must be issued within the period allotted to the court to consider the issue of accepting the claim for proceedings. For this reason, the determination must be made within five days from the date of receipt of the claim.
Part 2 of the article in question determines the legal consequences of the applicant’s elimination or failure to eliminate the shortcomings cited in the court’s ruling to leave the claim without progress. If the plaintiff promptly fulfills all the requirements specified in the ruling on leaving the claim without progress, then the application receives the status of being filed on the day of its first submission to the court. Otherwise, the application is considered not to have been submitted and is returned to the applicant along with the documents that were attached to it.
The court must also make a ruling on this. Persons whose procedural rights are affected by it may file a private complaint against the court's ruling.
Leaving a claim without progress is impossible if a case has already been opened and accepted for proceedings. If during this period circumstances are discovered that should cause the application to be left without movement, then the claim can neither be returned nor left without movement.
The judge who accepted the application must take measures to ensure that the plaintiff eliminates all shortcomings during the preparation of the case for consideration or after a decision is made on the merits of the case. This is particularly stated in the Supreme Court ruling dated June 24, 2008 No. 11.
The procedure for filing a private complaint against a ruling to leave a claim without progress
Filing a private complaint is regulated only in civil procedural legislation. When the court has made a ruling, but a person does not agree with it, he can file a private complaint against the court ruling within 15 days. You can submit a complaint by email, postal mail or in person.
IMPORTANT : a complaint must be filed when a person is completely confident that there are circumstances in the determination that can be appealed. The period for consideration of the complaint should not exceed two months in case of appeal and within one month in cassation.
The state fee for a private complaint is not paid; a complaint to the court is filed free of charge. As documents, you must attach a copy of the ruling that is being appealed and copies of the complaint. The court considers this complaint and makes a decision to satisfy or reject the complaint on the grounds provided for by law.
Now the civil process is changing and in the new (not yet in force) legislation, filing a private complaint against a court ruling has been removed and they have decided to equate it with the arbitration process. From the moment the new courts operate, it will no longer be possible to file a complaint.
What to do if a typo is discovered after a decision has been made
It happens that the clerical error contains a decision already made by the court. If there is an error in the claim, how to correct it at the stage of the decision made - file a petition in accordance with Art. 200 Code of Civil Procedure of the Russian Federation, Art. 179 Arbitration Procedure Code of the Russian Federation, Art. 184 CAS RF. In him:
- reflect the details of the court and the parties, the number of the case, the decision made;
- briefly describe the situation;
- justify why the unreliability is a typo;
- express a request to correct the inaccuracy;
- put the date and signature.
IMPORTANT!
Only typos and obvious arithmetic errors can be corrected.
