Petitions in a civil process - statements of the parties in a lawsuit aimed at the completion of procedural actions by a court. This includes the examination of witnesses, the appointment of an examination, and other requests.
What are petitions their meaning
One of the rights that is granted by law to a participant in a civil process is the submission of applications. It is spelled out directly in the law. The petitions in the civil process are aimed at resolving any difficulties and issues that arise from the side of the process.
It must be remembered that the court is a neutral participant in the process and takes the initiative when the law directly indicates this. Otherwise, the parties should be active. It is not worth hoping for clues from the court.
The trial is organized quite liberally, and the requirements for procedural documents are minimal. At the same time, ignorance of some of the nuances can lead to a court refusal to satisfy the application or make the result useless. This concerns the timeliness of submission and the correct wording.
The difference between applications and applications
The law gives the right to file petitions and submit an application. What is the difference between them? Despite the use of two terms in the law, in practice there is no difference between them. And all requests to court, as a rule, are called statements. Judges in civil proceedings do not make any difference between them. Due to this, it is completely legitimate to call applications in the civil process statements. This will not be affected in any way by the court.
Types of petitions
They are served on a variety of occasions. What kind of requests do the parties make:
- Appointment of expertise.
- Interim measures.
- Please exclude evidence from the case file.
- The demand for documents.
- About the procedural deadlines and statute of limitations.
- Call witnesses.
- Clarification of requirements and (or) grounds of action.
The listed applications in a civil proceeding are typical. In the course of the proceedings, a variety of issues and problems may arise that require court intervention. This position is confirmed by the way legislation is formulated.
Timeliness of application
According to the Civil Procedure Code, petitions in civil proceedings are announced at the preliminary hearing stage. As a general rule, it is not forbidden to do this later, but the judge has the right to ignore the late request. An exception is possible in cases where there are valid reasons that the party is able to justify.
However, in practice, petitions are made almost throughout the proceedings, and judges examine them on the merits. Nevertheless, it is worth talking about your applications as early as possible.
If the defendant or one of them, if there are several of them, was involved in the trial later and was not present at the first meeting, he is given the right to state his requests to the court at the first appearance.
How to submit
All documents should preferably be submitted through the office, where the second copy is marked with the acceptance of the document. Applications can be filed with the lawsuit or after the lawsuit throughout the process between meetings. Then, a decision will be made on them in the courtroom.
The petition of the defendant in a civil proceeding or of the other party shall be submitted either orally or in writing.If the judge is not interested in the case and behaves within the framework of the law, then making oral requests in a meeting is acceptable with minimal risk of unfair conduct by the judge. For example, unscrupulous judges make it so that the oral statements of one of the parties are not noted in the protocol, and it is very difficult to prove something later. Written fixation is a kind of insurance.
Whether or not to solicit an oral motion in a civil proceeding depends on the circumstances.
Opt out
Refusal of the application in the civil procedure is not provided, but, given the specifics of the proceedings, it is quite acceptable. How do judges look at it? For them, such statements are just another petition. And accepted or not, it is determined by how much the request complies with the law. If it is to the detriment of the party (especially the child or the ward), the application will simply be refused.
The judge may beware if the request comes from a representative. Collusion of representatives is not uncommon, and the judge may later have problems. What does the judge cost the cancellation of the decision.
General design rules
Applications are prepared according to a certain scheme, despite the fact that the law does not impose any requirements on them. What do quality application samples look like?
- name of court;
- Name of the judge considering the case;
- information about the participant in the process that submitted the application;
- case number, its essence (who addressed what requirements);
- a statement of the circumstances that prompted the request;
- references to legal norms;
- a request to the court (to request a document, to appoint an examination, etc.).
- signature, date of referral.
Some lawyers, saving time and paper, write petitions directly into the text of the lawsuit, so they do not have to create an extra document.
An important point is the clarity of the wording. If it is incorrect or not clear enough, the judge will reasonably refuse the application. Below are considered the individual types of applications and the nuances of their preparation.
Moreover, the application forms and forms are different. A ready-made requirement is formulated in the sample, the form indicates: where and what to enter. And citizens often make significant mistakes by submitting requests to the court and receiving refusals on formal grounds.
How does the court respond
The law obliges the court to make decisions on the stated requests after other participants in the process speak out in this regard. In this case, the term for consideration of the application in the civil procedure is not provided.
Some judges, dealing with complex cases, give the parties their requests, but take decisions on them not immediately, but after some time. Usually everything is decided in a single meeting. As a rule, the judge makes a decision on the spot, without retiring to the deliberation room.
If the judge unreasonably delays the permission of the petitions, the party has the right to complain about the red tape to the chairman of the court with a request to take measures to expedite the proceedings.
A negative court decision on motions is allowed to appeal. If there is objectively no time for the complaint, the same petition can be filed while considering the case on the merits in the appellate court.
Appointment of expertise
Expertise - a study conducted by a specialist in the field of science, art, giving answers to questions posed by the court.
Both the defendants and the plaintiffs submit a request for an expert examination in a civil proceeding, and the court itself has the right to initiate its appointment. The judge is not formally obligated to agree to its conduct.
The judge invites the parties:
- questions that the expert will have to answer;
- organization in which it will be held;
- provide research materials.
In practice, the court itself decides where the examination is carried out and what questions to put before the expert, the parties leave everything to his discretion. In almost all cases, a standard set of questions is applied, and the parties rarely take the initiative.
In some cases, an application for an examination is sufficient, in others it is necessary to prove its necessity. For example, a psychiatric examination is permitted if there is evidence of a mental disorder.
Interim measures
The seizure of accounts, other property is used as a restrictive measure, preventing the defendant from covering up his property so that it would not be possible to impose a penalty.
A petition for securing a claim in a civil process is allowed to be submitted at any stage of the process. However, it cannot be filed before the lawsuit.
In a statement, the plaintiff describes for what reasons considers necessary interim measures, which ones, and on what property.
The judge makes a decision without calling anyone, immediately after receiving the application. Having agreed with the applicant, he sends him a copy of the decision for transmission to the bailiff. He is already engaged in the search for property.
A judicial act banning real estate and car transactions is sent immediately to the authorities of the Federal Registration Service and the State Traffic Safety Inspectorate. As soon as prohibition notes are entered into the registers, transactions become impossible.
Question of evidence
Evidence - information about facts relevant to the case. Information is drawn from the testimonies of witnesses, documents (certificates, acts, etc.), testimonies of witnesses.
Their adoption by the court depends on two criteria:
- how they relate to the circumstances of the dispute;
- legality of receipt.
A party that believes that it does not meet the requirements of the law has one right: to file a motion to exclude evidence in a civil proceeding. For example, the testimony or document does not correspond to other materials of the case that are reliable.
Legality means: whether a document was issued within the framework of authority and in an agreed manner.
Often the question arises of the authenticity of the document. Judges, receiving documents from the participants in the process as evidence, check them by submitting requests. Unfortunately, such a check is not always feasible. If there is any doubt about the authenticity, the participant in the process has the right to declare this, and the court will send the document for examination.
This rarely comes to this, it is noted that the document does not comply with the law and therefore is not adopted. Even the testimonies are simpler: the court notes its critical attitude towards them, without applying criminal sanctions to witnesses.
Document Claim
Open access to some information is prohibited directly. For example, notarial secret is protected by law, access to acts of the Civil Registry Office is limited. Sometimes documents simply refuse to issue, referring to interdepartmental acts or ignoring requests.
An application is made with reference to a legislative act prohibiting free access to documents or refusal of an organization or body. If a written refusal was not issued, proof of sending the request or application is needed. This is either a copy with the incoming number, or receipts from the post office.
The place of storage of the document, the address of the organization to which the court will send the request must be indicated.
Timing statements
One group of terms is established by procedural legislation, the second - material, limitation periods.
Both are being restored or renewed; a ban on renewal or restoration is provided exclusively by law.
All applications in the court are accepted subject to the specified deadlines. If it is omitted, the court returns the application, indicating the need for a request for reinstatement. The applicant must attach evidence of the validity of the pass or evidence that the deadline was not missed at all. For example, the time for filing a complaint on some decisions begins to flow from the moment an interested person receives information or documents.
The application is attached to the claim or other document or combined with it.
Witness statements
Witnesses in the case - persons who know something about the circumstances of the dispute. They can still be attracted to provide explanations. For example, a notary public is asked to provide explanations regarding documents issued or certified by him.
In the application for the call, the party is obliged to inform the court: what information a person can provide, his personal information (name, address of residence).
In practice, the appearance of a witness in court is ensured by the parties; there is no forced drive in civil proceedings, despite this possibility from the point of view of the law. To agree or not with the involvement of a witness, the court decides.
Of all the evidence, the words of the witnesses are assessed as less significant in comparison with the documents.
Clarification of the requirements
The law provides for the clarification of the grounds of claim and claims. In the first version, these are circumstances to which the plaintiff refers, in the second - the direct requirements of the plaintiff (to oblige, recover, etc.). Clarification is associated with specification (for example, an expanded list of documents or things that require transfer, etc.).