RF Armed Forces ON ORDER PROCEEDINGS
Daria Nyukhalkina, lawyer, Exiora Law Office, Moscow
Order production in modern Russian legal system has existed for more than twelve years, however, the Supreme Court of the Russian Federation, which has repeatedly provided clarifications on the application of certain institutions of procedural legislation, until recently did not separately address issues of writ proceedings. And so, on December 27, 2016, the Plenum of the Supreme Court of the Russian Federation adopted Decree No. 62 “On some issues of application by the courts of the provisions of the Code of Civil Procedure of the Russian Federation and the Arbitration Procedure Code of the Russian Federation on writ proceedings.”
From the history
A court order is a judicial act that is issued by a justice of the peace or a judge of an arbitration court of a constituent entity of the Russian Federation on an application for the recovery of movable property or for the recovery of sums of money on the grounds specified in Art. 122 Code of Civil Procedure of the Russian Federation and art. 229.2 APC RF. The list of requirements for which a court order can be issued is closed.
The difference between a court order and a court decision is that a court order is also an executive document.
Writ proceedings as a kind of simplified judicial proceedings existed (albeit in a slightly different form) in pre-revolutionary Russian procedural law, starting with the judicial reform of 1864. Later, this institution was included in the Code of Civil Procedure of the RSFSR of 1923 (Articles 210-219), however, in the 30s of the last century, the provisions on writ proceedings were excluded from the procedural legislation.
In the Russian procedural legislation, the institution of writ proceedings appeared in 1995 with the introduction of amendments to the Code of Civil Procedure of the RSFSR in force at that time in 1964. Subsequently, these norms were reproduced in the Code of Civil Procedure of the Russian Federation of 2002.
Arbitration courts acquired the right to issue court orders relatively recently. Since the practice of courts of general jurisdiction confirmed the effectiveness of this form of summary proceedings, the effect of the institution of a court order was extended to civil litigation in arbitration courts. Legal regulation Writ proceedings in the arbitration process are carried out by the norms of Chapter 29.1 of the Arbitration Procedure Code of the Russian Federation (introduced by Federal Law No. 47-FZ of March 2, 2016 “On Amendments to the Arbitration Procedure Code Russian Federation”, which entered into force on 06/01/2016).
indisputability
Decree of the Plenum of the Supreme Court of the Russian Federation No. 62 dated December 27, 2016 (hereinafter referred to as the Decree) consists of six sections and includes clarifications of general provisions, provisions relating to claims filed in the order of writ proceedings; order of order production; execution of a court order; appeal against the court order in the court of cassation, and final provisions.
In the section devoted to general provisions and claims filed in writ proceedings, the Supreme Court clarifies issues related to the definition of the term of indisputability, the concept of monetary amounts subject to collection in writ proceedings, the grounds for claims filed in writ proceedings, as well as claims not subject to consideration in order proceedings.
Since a court order can only be issued on indisputable claims, and neither the Code of Civil Procedure of the Russian Federation nor the Arbitration Procedure Code of the Russian Federation contain definitions of indisputability (although the signs of indisputability are indicated in the rules on writ proceedings), the Supreme Court paid special attention to what is meant by indisputable claims.
According to clause 3 of the Resolution, indisputable in writ proceedings are claims confirmed by written evidence, the reliability of which is beyond doubt, and also recognized by the debtor.
Thus, in order to classify a claim as indisputable, three conditions must be simultaneously met:
– the claim must be based on written evidence presented in court by the claimant;
- the reliability of the evidence should not be in doubt;
- the debtor must acknowledge the stated claims.
Previously, in Ruling No. 43-KG16-2 dated May 10, 2016, the Supreme Court indicated that, within the meaning of the provisions of Art. 125 of the Code of Civil Procedure of the Russian Federation "a court order is issued only for indisputable claims that do not imply any dispute about the right, since the indisputability of claims is the main prerequisite for the implementation of writ proceedings." Taking into account the said Definition, the indisputability of the claim, considered in the order of writ proceedings, means the absence of a dispute about the right.
The Constitutional Court of the Russian Federation in Ruling No. 785-О-О dated November 15, 2007 also proceeds from the fact that indisputability in relation to writ proceedings means the absence of a dispute about the right, indicating that if the judge doubts the indisputable nature of the stated requirements, then in order to protect rights and interests of the defendant, he must refuse to accept the application for the issuance of a court order, which, however, does not deprive the applicant of the opportunity to apply to the court with a statement of claim on the same grounds in the general manner.
In paragraph 4 of the Resolution, the Supreme Court clarified that the recognition by the debtor of the claims filed by the recoverer in the framework of writ proceedings is presumed. Such a presumption can be overcome by the filing by the debtor of objections regarding the execution of the court order, which may relate to the very existence of the claim, the amount of the claim, the validity of the transaction from which the claim arose, etc.
It also follows from paragraph 4 of the Resolution that the existence of a dispute about the right, as well as disagreement with the stated requirement and the evidence substantiating it, may follow from the documents submitted to the court by the claimant along with the application for issuing an order. In this case, the arbitration court refuses to accept the application on the basis of paragraph 3 of part 3 of Art. 229.4 APC RF.
The indisputable nature of the claim, which is stated in the framework of writ proceedings, in accordance with paragraph 7 of the Resolution, exempts the claimant from the need to comply with the pre-trial procedure for resolving the dispute, which became mandatory from 06/01/2016 when applying to the arbitration court. Compliance with the pre-trial procedure is also not required in cases where, after the cancellation of the court order, the exactor applies to the arbitration court with a statement of claim in the general manner.
About timing
Objections regarding the execution of a court order must be filed by the debtor within 10 days from the date of receipt of its copy (part 3 of article 229.5 of the Arbitration Procedure Code of the Russian Federation). If such objections are received within the prescribed period, the court order is subject to cancellation on the basis of Part 4 of Art. 229.5 APC RF. If objections are received by the court after the expiration of the established period, they are not considered and returned to the person to whom they were filed, unless this person justified the impossibility of submitting objections within the established period for reasons beyond his control (part 5 of article 229.5 APK RF).
The term for filing objections regarding the execution of a court order is calculated from the day the debtor receives a copy of the order. In paragraph 30 of the Resolution, the Supreme Court draws attention to the fact that the debtor independently bears the risk of not receiving a copy of the court order due to circumstances within his control.
Requirements
If the application for the issuance of a court order is based on a decision of a tax authority issued as a result of a tax audit, the mere fact that the debtor has objections to such a decision submitted by the debtor to the arbitration court will not be an obstacle to consideration of the claim in the order of writ proceedings. However, if the debtor appealed the decision of the tax authority to a higher authority, a court order cannot be issued by an arbitration court, regardless of the results of consideration of such a complaint (paragraph 10 of the Resolution).
Federal Law No. 45-FZ dated 02.03.2016 “On Amendments to the Civil Procedure Code of the Russian Federation and the Arbitration Procedure Code of the Russian Federation” in the list of requirements for which a court order can be issued by a justice of the peace, claims for the recovery of payment arrears were separately included housing and utilities, as well as services telephone connection(paragraph 10, article 122 of the Code of Civil Procedure of the Russian Federation). Prior to these amendments, such claims were treated as claims based on a written transaction asserted under par. 3 art. 122 Code of Civil Procedure of the Russian Federation (Issue 13 of the Review judicial practice of the Supreme Court of the Russian Federation No. 2 (2015), approved by the Presidium of the Supreme Court of the Russian Federation on June 26, 2015).
In paragraph 11 of the Resolution, the Supreme Court of the Russian Federation explained that on the basis of par. 10 st. 122 of the Code of Civil Procedure of the Russian Federation, a court order may also be issued upon a request for payment for services of other (other than telephone) types of communication (for example, telematics). This also applies to a situation where a court order is issued by an arbitration court (Clause 1, Article 229.1 of the Arbitration Procedure Code of the Russian Federation).
Despite the fact that both the Code of Civil Procedure of the Russian Federation and the Arbitration Procedure Code of the Russian Federation contain a closed list of requirements for which a court order can be issued, in paragraph 12 of the Resolution, the Supreme Court clarified what requirements make it impossible to issue a court order. Such claims, in particular, include claims for compensation for damages caused by non-performance ( improper execution) contracts for compensation moral damage, on the termination of the contract, on the recognition of the transaction as invalid, as well as the claims of creditors against the debtor, in respect of which the bankruptcy procedure has been introduced (such claims can only be made in a bankruptcy case).
In the same paragraph 12 of the Resolution, the Supreme Court drew attention to the fact that the provisions of Chapter 29.1 of the Arbitration Procedure Code of the Russian Federation on writ proceedings do not apply to cases considered by arbitration courts on bringing to administrative responsibility (§ 1 of Chapter 25 of the Arbitration Procedure Code of the Russian Federation).
Order explained
Explaining the procedure for writ proceedings, the Supreme Court points out that an application for issuing a court order can be filed both under general territorial jurisdiction, and under alternative or contractual jurisdiction, while the rules of contractual jurisdiction apply even if the agreement of the parties determines the jurisdiction only a claim (paragraph 13 of the Resolution).
In accordance with paragraph 14 of the Resolution, an application for issuing a court order may be signed by a representative of the recoverer, even if the power of attorney issued to the representative indicates the authority to sign and file a statement of claim with the court and does not specifically stipulate the authority to sign and file an application with the court for the issuance of a court order.
In paragraph 15 of the Decree, the Supreme Court explains what documents can be used to support the claims on the basis of which the claimant asks for a court order. Such documents, in particular, include documents confirming an existing obligation and the due date for its performance (for example, an agreement or a receipt). To substantiate the application for the collection of mandatory payments and sanctions, the tax authority must submit a demand for the payment of tax (Articles 69, 70 of the Tax Code of the Russian Federation).
If an application for issuing an order is filed with an arbitration court, the recoverer must send a copy of the application and the documents attached to it to the debtor (paragraph 16 of the Resolution).
According to paragraph 18 of the Resolution, an application for issuing an order may also be submitted to the court in electronic form.
Determinations on the return of an application for the issuance of a court order and on the refusal to accept an application for the issuance of a court order within 15 days may be appealed to the court of appeal. The Court of Appeal considers such complaints alone and without summoning the parties (paragraph 22 of the Resolution).
In paragraph 25 of the Decree, the Supreme Court draws attention to the fact that the expiration of time limits limitation period according to the declared civil law claim, as well as the presentation of a demand for early repayment of the amount of the debt, not connected with the application for termination of such an agreement, is not an obstacle to the issuance of a court order, as well as the fact that when considering an application for the issuance of a court order, the court is not entitled reduce the amount of the penalty on the basis of Art. 333 of the Civil Code of the Russian Federation. However, the debtor has the right to refer to the expiration of the limitation period, to disagreement with the early repayment of the debt, as well as to the existence of grounds for reducing the amount of the penalty (fine, penalties) in objections to the execution of the court order, which in this case is subject to cancellation.
Since the court order comes into force immediately after its issuance and is also an executive document, its appeal in the appeal procedure is not provided for by law.
However, the court order may be appealed in cassation. A cassation appeal against a court order issued by a justice of the peace is filed directly with the court of cassation in the manner prescribed by Art. 377 of the Code of Civil Procedure of the Russian Federation, and a cassation appeal against a court order issued by an arbitration court is filed with the court of cassation according to the rules of Art. 275 of the Arbitration Procedure Code of the Russian Federation through the arbitration court that issued the order (paragraph 43 of the Resolution).
If a court order resolves the issue of the rights and obligations of a person who did not participate in writ proceedings, such a person (for example, bankruptcy creditors, an authorized body, an arbitration manager) is also entitled to appeal the court order in cassation in relation to Part 4 of Art. 13, part 1, art. 376 Code of Civil Procedure of the Russian Federation, art. 42 and part 11 of Art. 229.5 of the Arbitration Procedure Code of the Russian Federation (clause 44 of the Decree).
If the claims of the plaintiff are undisputed, recognized by the defendant, or the claim is filed for an insignificant amount, the case may be considered in summary proceedings.
Simplified proceedings are a new type of proceedings in the arbitration process, previously unknown to arbitration procedural legislation, a new institution of arbitration procedural law.
However, its appearance is caused by objective reasons and the entire history of the development of both arbitration procedural and civil procedural law. In addition to the generally accepted classification of arbitration cases in practice, they can be conditionally divided according to the level of complexity, which is associated with "energy costs" and the time period for their consideration. Some demand from the arbitral tribunal and other participants arbitration process performing large actions, and, consequently, more time for their consideration, others - less, since they are not very difficult to consider. In this classification, cases of an indisputable nature stand apart; cases in which the claims of the plaintiff are recognized by the defendant, as well as cases related to the consideration of claims with an insignificant amount of claims. All of these categories of cases can be considered in accordance with Article 226 of the APC in summary proceedings.
The purpose of the introduction of simplified proceedings is, first of all, the procedural saving of money and time for both the arbitration court and the participants in arbitration proceedings. However, when considering cases in summary proceedings, all the tasks of arbitration proceedings specified in Article 2 of the APC must be fulfilled, as well as the basic principles of the arbitration process must be observed. The introduction of summary proceedings should not be considered as a departure from the principles of equality of the parties, dispositiveness and competitiveness, since the law establishes appropriate guarantees that allow transferring the consideration of an arbitration case from a simplified procedure to the usual mode of action proceedings. The legislator only recognizes that not in all cases - the arbitration court needs to conduct an expensive detailed procedure for considering an arbitration case. The value of summary proceedings in the arbitration process follows from its essence and objectives. The application of the creditor has a priority right to a simplified procedure due to the civil law the presumption of guilt of the debtor who has not fulfilled or improperly fulfilled his obligations to the counterparty, which makes the right of claim indisputable, which, in turn, can be challenged. Simplified proceedings, in addition to solving the problems enshrined in Article 2 of the APC, additionally allow the arbitration court:
- - increase the efficiency of consideration of arbitration cases by reducing the period for consideration of an individual case (a shortened one-month period from the moment the case is received by the arbitration court compared to the general rules);
- - to improve both the efficiency of the work of arbitration courts themselves and the enforceability of the acts adopted by them;
- - improve the effectiveness of protection of violated and disputed rights and legitimate interests of participants in the arbitration process;
- - unload arbitration courts;
- - reduce material costs and time spent on consideration of arbitration cases that do not require a complex and expensive procedure.
All these tasks are solved by the system of arbitration courts in a complex, so sometimes it is difficult to separate them from each other. In general, simplified proceedings in the arbitration process is a timely step in the development of arbitration procedural legislation and law, and meets the goals and objectives of the judicial reform being carried out in our country. The initiation of an arbitration case, considered in the manner of summary proceedings, is carried out according to general rules installed by APK. The plaintiff must comply with the rules of jurisdiction and jurisdiction, fulfill other obligations related to filing a claim and exercising his right to claim. In addition, the plaintiff may file other petitions related, for example, to the need for an arbitration court to apply interim measures, etc. The current arbitration procedural law does not impose any additional requirements on persons initiating an arbitration case, which can later be considered in summary proceedings. The APC does not contain any additional requirements for the actions of an arbitrator at the stage of initiating an arbitration case, which can later be considered in summary proceedings, with the exception of the following.
At the stage of initiating an arbitration case, the arbitrator must consider the possibility of its transfer for consideration in summary proceedings.
In summary proceedings, cases may be considered:
- 1) on property claims based on documents confirming arrears in payment for consumed electricity, gas, water, heating, communication services, rent and other expenses associated with the operation of premises used for the purpose of entrepreneurial and other economic activities;
- 2) on claims based on documents submitted by the plaintiff, establishing the property obligations of the defendant, which are recognized by the defendant, but not fulfilled;
- 3) on claims legal entities in the amount of up to 200 minimum wages established by federal law, on claims of individual entrepreneurs in the amount of up to 20 minimum wages established by federal law;
- 4) for other requirements, subject to the conditions provided for in Art. 226 APC RF.
Cases of summary proceedings are considered by an arbitration court in accordance with the general rules of action proceedings provided for by the Arbitration Procedure Code of the Russian Federation, with the features established in Chapter 29 of the Arbitration Procedure Code of the Russian Federation.
Cases of summary proceedings are considered by a single judge within a period not exceeding one month from the date of receipt of the statement of claim by the arbitration court, including the period for preparing the case for trial and making a decision on the case. In the ruling on accepting the statement of claim for proceedings, the arbitration court indicates the possibility of considering the case in summary proceedings and sets a fifteen-day period for the parties to submit objections to the consideration of the case in summary proceedings, as well as for submitting a response to the stated requirements or other evidence. When considering cases in summary proceedings, the court session is held without summoning the parties. The court examines only written evidence, as well as a review, explanations on the merits of the stated requirements, presented in writing, other documents. If the debtor objects to the stated claims, and also if the party objects to the consideration of the case in summary proceedings, the arbitration court issues a ruling on the consideration of this case in accordance with the general rules of action proceedings established by the Arbitration Procedure Code of the Russian Federation.
A decision based on the results of the consideration of the case in summary proceedings may be taken only if the debtor has not submitted objections on the merits of the stated claims within the period established by the court. The decision on the case, considered in the summary procedure, is taken according to the rules established by Chapter 20 of the Arbitration Procedure Code of the Russian Federation. A copy of the decision shall be sent to the persons participating in the case no later than the next day after the day of its adoption. The decision may be appealed within a period not exceeding one month from the date of its adoption, in the arbitration court of appeal. When initiating a case considered in summary proceedings, the plaintiff must perform general actions aimed at initiating arbitration proceedings, provided for in Chapter 13 of the APC, file a statement of claim, and perform other actions in accordance with Articles 125, 126 of the APC.
If there are conditions, the plaintiff may independently file a petition for consideration of the arbitration case in summary proceedings. This petition may be contained in the submitted statement of claim or may be drawn up as a separate _-procedural document. In the petition, the plaintiff must indicate compliance with the conditions specified in Articles 226, 227 of the APC.
In the case of the indisputable nature of the stated claims, the plaintiff must confirm this with evidence attached to the statement of claim. The indisputable nature of the claims does not mean the absence of a dispute, since in the latter case this would be contrary to Article 4 of the APC, which establishes the right to arbitration judicial protection and its limits. The indisputability of the claims made by the plaintiff means that the claims are supported by irrefutable or the only possible evidence, or their totality does not raise doubts about the legitimacy of the claims of the plaintiff. As an example, there may be disputes of a public law nature and other disputes related to property claims based on documents confirming arrears in payment for consumed electricity, gas, water, heating, communication services, rent and other expenses, related to the operation of premises used for the purpose of carrying out entrepreneurial and other economic activities.
If the plaintiff petitions for consideration of the case in summary proceedings based on the recognition by the defendant of the claims made by the plaintiff, he must provide documents confirming the recognition by the defendant of these claims and their non-fulfillment by the latter. Various kinds of receipts, reconciliation acts, etc. can serve as such documents. In addition, such evidence can be both a written recognition of the debt directly expressed by the defendant, and evidence of the defendant's actions aimed at the fulfillment (including partial) of his debt obligations. In any case, all submitted documents must comply with the general requirements of the current APC for written evidence. Regardless of who the initiative to consider the case in summary proceedings comes from (from the plaintiff or the arbitration court), the judge of the arbitration court, in the absence of other obstacles, issues a ruling on accepting the statement of claim for its proceedings in accordance with the requirements of Article 127 and Chapter 21 of the APC. In the ruling issued by the arbitration court, it is additionally indicated that the case can be considered in summary proceedings; a fifteen-day period is established for the parties to submit objections to the consideration of the case in summary proceedings, as well as for the defendant to provide a response or other evidence to the stated requirements. In addition, in the said ruling, the arbitrator may indicate to the parties the consequences of their failure to provide consent, objections to the consideration of the case in summary proceedings or withdrawal of the claim.
The fifteen-day period specified in the ruling must be calculated from the moment the arbitration court accepts the statement of claim for its proceedings.
Copies of the ruling on the initiation of an arbitration case shall be sent by the arbitration court to the parties no later than the next day after its issuance.
Having received a copy of the ruling on the initiation of arbitration proceedings and the possibility of considering it in summary proceedings, the defendant may send to the arbitration court either his objections to the consideration of the case in summary proceedings, or objections on the merits of the claims against him. The consequences will be identical - the arbitration court will have to issue a ruling on the consideration of the case according to the general rules of action proceedings established by the APC.
The defendant's objections can be drawn up in the form of a response to the claims or in the form of a written explanation of the party and must comply with the general requirements for procedural documents.
After resolving the issue of initiating an arbitration case, which can be considered in summary proceedings, the arbitration judge must resolve issues related to the preparation of this case.
summary court proceedings arbitration
Penalty and interest may be recognized by the Debtor in the Reconciliation Act.Olga wrote:
Good afternoon! An unexpected question arose. We are going to sue, the debt with penalties and interest is more than 7,000 base. There is a contract, invoices, although the other side does not comment on the amount of penalties and interest. So can we assume that our demands are non-sports in nature?
Thanks in advance!
Other documents may also be such documents.
"4. To an application containing claims that are indisputable (based on documents confirming the debtor's debt), the recoverer must attach documents confirming the amount of the debt and the circumstances on which these claims are based (act, contract, invoices, calculation of the debt indicating period of the resulting debt, calculation of penalties and interest for the use of other people's funds, etc.), as well as evidence of the indisputability of the claim.
Evidence of the indisputability of the claim may include: documents confirming the arrears in payment for the consumed electricity, water, heating, gas, communication services, formed in connection with the maintenance by legal entities and individual entrepreneurs of premises used for the purpose of entrepreneurial and other business (economic) activities; solution government agency on the collection of mandatory payments, penalties; documents confirming the formation of current debt on mandatory payments to the budget and state off-budget funds; documents confirming the existence of a notarized transaction; protest of a bill of non-payment, non-acceptance, undated acceptance, etc.
5. For claims that are recognized (not disputed) by the debtor, but not fulfilled, the recoverer (applicant) must attach evidence confirming the circumstances on which the claim is based (agreement, waybills, acts, invoices, waybills, etc.), documents confirming the recognition (non-disputing) of the amount of debt by the debtor.
Such a document may be a claim sent to the debtor, received and left unanswered., an act of reconciliation of settlements, a response to a claim, an IOU, an accepted payment request or another document drawn up in accordance with the requirements of the law and signed by an authorized person.
An application for the initiation of writ proceedings may contain a requirement for the collection of a penalty (fine, penalty fee) and interest for the use of other people's funds in the event that they are recognized (not disputed) by the debtor.
As you can see, such a document can also be a claim sent to the debtor, a claim received and left unanswered. Therefore, if you send a claim with the calculation of penalties and interest and do not receive a response to it within the time limits established by the contract or within 30 days in accordance with the law, you have the right to apply to the economic court with an application to initiate writ proceedings for the recovery of principal, penalties and interest.
"18. When accepting an application for initiating writ proceedings, the economic court within five working days issues a ruling on initiating writ proceedings, which it sends to the recoverer and debtor with an explanation of the need to submit a review with attachment of documents confirming the objections to the claimant's claims.
(Resolution of the Plenum of the Supreme Economic Court of the Republic of Belarus dated May 27, 2011 N 9 "On some issues of writ proceedings")
24. If the debtor fails to submit a response within the period established by Article 223 of the Code of Criminal Procedure, or if a response is submitted without attaching documents confirming objections to the claims of the recoverer, or if the response contains the recognition of the stated requirements, the economic court issues a ruling on a court order.
(Resolution of the Plenum of the Supreme Economic Court of the Republic of Belarus dated May 27, 2011 N 9 "On some issues of writ proceedings")
26. Refusal to issue a ruling on a court order does not exclude the right of the exactor to present the relevant requirements in the course of action proceedings, about which the economic court explains in the operative part of the ruling.
By virtue of part four of Article 224 of the Code of Civil Procedure, the recoverer has the right, within fifteen working days after the direction of the ruling on the refusal to issue a ruling on a court order, to apply to the economic court with a petition for consideration of his claims in the order of action proceedings. Documents confirming the payment of the state duty in the manner and amount established when filing a claim, and a statement of claim with copies according to the number of defendants must be attached to such a petition. On account of the payment of the state duty in the proceedings, the tax authority shall allow, in accordance with the established procedure, the amount of the state duty paid by the claimant when filing an application in the order of writ proceedings, if the issuance of a ruling on a court order is refused in respect of the entire amount of the stated claims.
The rule of part four of Article 224 of the Code of Criminal Procedure may be applied in case of refusal to issue a ruling on a court order both for the entire amount of the stated claims, and for part of it.
When applying the fourth part of Article 224 of the Code of Criminal Procedure, it is not required to provide evidence of the plaintiff's compliance with the requirements of the law or the agreement on pre-trial settlement of the dispute (claim, negotiations, out-of-court mediation).
03/02/2016 - "Small claim", can be considered under a simplified procedure....
The history of the judiciary and legal proceedings testifies to the constant search for simplified forms of civil cases that correspond to the tasks of judicial activity...
Council of the Federation Federal Assembly The Russian Federation approved the introduction of simplified proceedings in civil proceedings in cases with a small claim value (up to 500,000 rubles) and indisputable claims.
Draft Law No. 725381-6 "On Amendments to the Civil Procedure Code of the Russian Federation and the Arbitration Procedure Code of the Russian Federation (in terms of the unification of procedures and rules applied by courts of general jurisdiction and arbitration courts)" is aimed at implementing the task of optimizing the judicial workload, which VIII All-Russian the Congress of Judges is designated as a priority, since its implementation contributes to ensuring the right of persons applying for judicial protection to a fair and public trial within a reasonable time.
The draft law proposes to introduce into the civil procedural legislation a simplified procedure for considering the so-called "small claims", that is, cases with a small claim value, and indisputable claims.
At the same time, the content of the concept indisputable claim"Procedural legislation does not disclose, although it is precisely this condition that is the most problematic from a theoretical and practical point of view. However, it is more expedient to talk about the indisputability of not requirements, but of the evidence on which these requirements are based. Due to the foregoing, the condition of indisputability of requirements should not be identified with their confession by the defendant.
Thus, as a condition for considering the case in summary proceedings, the legislator establishes only the presumption of indisputability of the evidence underlying the plaintiff's claims, which can be challenged. Under the "indisputability of claims" can be understood as the presence of sufficient and relevant evidence, indisputably confirming the validity of the claims.
According to the developers of the bill, cases where the price of the claim - up to 500,000 rubles, belong to the category of cases with a small claim price.
The main difference between the consideration of cases under the rules of summary proceedings and the consideration of cases under the general rules of action proceedings is their consideration without summoning the parties according to the documents submitted by the parties in cases strictly defined by law, as well as, at the request of the parties, in other cases. At the same time, the summary procedure involves consideration of cases on the merits of the stated claims in an adversarial process, taking into account the position of both parties to the dispute, but with reduced time and financial costs of the parties and the time costs of the court.
This procedure complies with the principles set out in Recommendation No. R (81) 7 of 14 May 1981 of the Committee of Ministers of the Council of Europe “The Committee of Ministers to Member States on Ways to Facilitate Access to Justice”, taking into account the provisions of the Regulation of the European Parliament and of the Council of 11 July 2007. No. 861/2007 “On the establishment of a European procedure for the consideration of claims of small value”, which entered into force on January 1, 2009. In arbitration courts, the current model of the summary procedure procedure has been applied since September 2012.
Thus, the consideration of the case will be carried out on the basis of the submitted documents and evidence. without calling the parties which will significantly reduce the time and financial costs of the persons involved in the case.
According to the developers of this draft law, the adoption of the draft law will allow to organically establish, along with the procedure for writ proceedings, another accessible, transparent and quick procedure for considering simple and insignificant claims in cases, which will contribute to the implementation of the tasks of legal proceedings in civil process and, as a result, optimization of the judicial workload, increasing the efficiency and quality of justice.
By the way, a similar initiative is already in place in Kazakhstan.
The institute of simplified proceedings was introduced into the edition of the old civil procedural legislation of the Republic of Kazakhstan in November 2014.
The new Civil Procedure Code of the Republic of Kazakhstan (Code of the Republic of Kazakhstan dated October 31, 2015 No. 377-V ZRK) has already introduced a similar procedure for simplified (written) proceedings.
In this simplified (written) procedure for proceedings, cases are subject to consideration 12
categories, in particular
- on claims on the recovery of money, if the value of the claim does not exceed seven hundred monthly calculation indices for legal entities, for individual entrepreneurs, citizens - two hundred monthly calculation indices ( 1 monthly calculation index from January 1, 2016 = 2121 tenge; 1 Russian ruble = 4.68 tenge);
- regardless of the value of the claim on statements of claim based on the documents submitted by the plaintiff, establishing the financial obligations of the defendant, and (or) on documents confirming the debt under the contract;
- on the execution of agreements on the settlement of disputes (conflicts) in the manner of mediation, concluded in the manner of pre-trial settlement in cases established by law or provided for by the contract ...