The Code of Civil Procedure does not pay as much attention to the pre-trial dispute settlement procedure as it does in the agro-industrial complex. The provisions of the Code of Civil Procedure are supplemented by the provisions of other laws and by-laws. Consider how this order is applied and its meaning.
Formality or Real Tool
In the Code of Civil Procedure, the pre-trial procedure for the settlement of disputes is a means of avoiding court intervention in the resolution of the conflict. After all, a judicial act is a result that does not always suit fully either one or the other side. Its application to the state gives a chance to at least slightly reduce the burden on the judicial system.
How realistic is the use of extrajudicial procedures? Practice shows that, having resorted to it, participants in the process do not necessarily achieve a positive result. Lawyers who look more soberly at situations than their employers play their part. Arguments in favor of reaching agreements are sometimes fruitful. The inclusion in the agreement clause of a reference to pre-trial settlement makes sense where the parties really rely on it.
At the same time, a court among entrepreneurs is not considered the best way to resolve disagreements, and they prefer to negotiate directly with their clients and partners.
Normative regulation
Actually, in the Civil Procedure Code, only one article is devoted to the pre-trial procedure for the settlement of the dispute. The reason for this is the level of literacy of citizens. In the case of entrepreneurs, the approach is different; in the agricultural sector, the degree of regulation is higher. In addition, other regulations contain a number of instructions on this subject.
The claim procedure and the appeal to the authorities that can resolve the dispute should be divided. In practice, the first option is applied in the civil process. If the authority makes a decision, it does not have the force of a judicial act, which is subject to enforcement.
Features of the civil process
If we take the Civil Procedure Code, compliance with the pre-trial procedure for the settlement of the dispute has several features:
- the list of situations in which it is necessarily applied is limited by regulatory acts;
- pre-trial procedure is applied if there is a direct indication in the legislation, vice versa in the arbitration process;
- the filing procedure and requirements for the document are described in legislative acts.
Is there a right to refuse
What will we see when opening the GPC? Pre-trial dispute settlement is an integral part of the process in some cases. Why? The law explicitly states that judges are required to verify that applicants use the means of out-of-court dispute resolution. If the materials attached to the claim do not contain supporting documents, the claim remains without movement, and then returned.
According to the law, the judge has the right to immediately return the claim, without leaving it without movement. Why do they not immediately return the claim from time to time? The reason for the lack of documents is forgetfulness, and not their real absence. If the claim is returned, it is likely that after a while it will be with the same judge with the corresponding corrections.
If the second side does not want to put up
Citizens who wish to sue tend to think that because of this requirement they have no chance to sue. After all, the second side will ignore their request or will not even consider it. Lawyers are faced with complaints about the refusal of offenders to accept claims or give answers to them. What then to do? The court is interested in the fact of an attempt to file a claim.For example, a representative of the organization did not appear in the mail and did not pick up the letter, or they received it, registered it, but did not give any answer.
In the first case, the applicant is left with a sealed envelope with an inventory bearing the stamps of the post office. In the second case, the applicant has in his hands a copy of the claim with a note on its acceptance. It lacks the signature of the responsible employee and the date of adoption of the document on its copy. Such evidence is enough to open a case. We conclude: according to the Code of Civil Procedure, non-compliance with the pre-trial procedure for the settlement of the dispute by the second party does not have legal significance.
How do they learn about the need
According to the Code of Civil Procedure, the mandatory procedure for pre-trial settlement of a dispute is provided for:
- regulatory documents;
- signed agreement.
Regulations
A striking example is the provisions of the Civil Code, they expressly indicate the need to file a claim. In particular, in the relations between carriers of goods and their customers, a claim procedure is mandatory.
The Civil Code refers to other regulatory documents (codes, charters with additional requirements for the pre-trial procedure for resolving conflicts).
Included are provisions indirectly indicating conciliation proceedings. For example, the relationship between the contractor and the customer. They provide a warning about the impossibility of fulfilling the terms of the contract due to the quality of materials or the way the work is proposed by the customer.
Confirmation of the fact of sending such a document in court gives an advantage to the contractor.
Contract clauses
One of the grounds for the pre-trial procedure for the settlement of disputes under the Code of Civil Procedure of the Russian Federation is clauses of the agreement. How? The document directly mentions the possibility of sending a claim, using the services of a mediator. The law gives the right to regulate the procedure for filing a claim, the period during which it is necessary to give an answer, and other questions. Entrepreneurs prefer not to complicate relationships with customers with such details.
Large companies, concluding contracts, prefer to prescribe in them a whole dispute settlement procedure.
Dispute Resolution Methods
There are two of them:
- claim direction;
- mediation.
Violation Scheme
Having revealed that the partner has committed a violation, you should notify him in writing or send a message in electronic form. It is advisable to secure proof of shipment. Notifications must be sent to all known addresses.
If a claim is sent directly, it should be called that way. Its form is proposed either by regulatory documents (for example, the housing sector), or is written in free form.
The absence of an approved form for a particular case is not a problem. The paper is prepared in accordance with the general rules for processing business documents.
The following describes the outline for writing a general complaint:
- full name of the sender (full name), address of location and residence;
- full name of the recipient’s organization (full name);
- statement of circumstances, what exactly is the violation; calculation of the amount requested by the applicant;
- applicant requirements;
- list of attached documents;
- signature and date.
Papers are sent by mail or by courier or transferred personally to the organization.
How long is the answer given
The law or other normative acts give time to prepare an answer. The standard period is 30 days, and a different period of time may be given.
Compliance with pre-trial dispute resolution means waiting for this time before filing a complaint with a court.
Mediation
The law has recently introduced provisions on mediation. The procedure involves the involvement of an intermediary who is not associated with either the court or the parties, and is trying to help develop a mutually beneficial solution.
You can resort to his help at any stage of the dispute, even if he has already been referred to court. Invitation of a mediator - voluntary choice
Judges do not attract them for a number of reasons.In particular, there are problems with the calculation of procedural terms. Judges fear that the proposal to resort to mediation will lead to a claim and a statement of challenge on the part of the participants in the process. The court’s attempts to reconcile the parties are not considered a mediation procedure.
The application of the mediation clause in the agreement and then its non-fulfillment does not give the courts grounds to return the claim or leave it without movement. The law does not contain clear language in this regard.
What categories of disputes does mediation cover?
- Labor, family conflicts.
- Economic disputes.
- Other disputes covered by federal law.
Mediation is not applied if it is likely to affect the interests of third parties, in collective labor disputes the interests of the state or municipality are affected.
The essence of the mediator's activity is the desire to find a path that would satisfy all parties. If one or both parties pursue their own interest exclusively and are not inclined to compromise, no result can be achieved. Compliance with the Code of Civil Procedure on pre-trial dispute resolution becomes impossible.
Features of Kazakhstan
It should be noted that the pre-trial procedure for the settlement of disputes under the Code of Civil Procedure of the Republic of Kazakhstan differs little from the existing in Russia. There are also features.
The law provides a single list of cases in which the use of pre-trial procedure in both civil and economic processes is mandatory. In Russia, for example, the termination and amendment of a contract in a civil court is possible without a claim (with the exception of disputes with consumer citizens).
If there is a right to file a complaint with a higher authority about the actions or omissions of officials, it must be used. Also, the prosecutor does not file a lawsuit without first protesting.
As in Russia, ignoring the pre-trial procedure for resolving a dispute in a civil process will lead to the return of the claim. If the pass is revealed during the examination of the dispute on the merits, the application remains without consideration and the case is terminated regardless of the stage (appeal or appeal).
Finally
Making a claim or another way to resolve a dispute is one way to reduce the burden on the courts. His disregard gives the courts the right not to open proceedings for certain categories of disputes.
Their form and content, the period during which an answer should be given, are determined in part by the regulatory acts regulating the corresponding sphere of the economy. The absence of norms in the law gives the right to make a claim in a free form.