Civil proceedings in Russia are formed by a sufficiently large number of institutions. Their essence is dictated by the specifics of the socio-economic development of the country, to some extent, by the historical features of statehood.
Among such institutes is order production. In the civil process, it is intended to greatly simplify the relationship between the potential plaintiff and the defendant. How is this supposed to happen?
General information on order proceedings
What is a court order? How does it differ from standard trial formats? The fact is that at the heart of this phenomenon lies such a concept as “order”. Which is fundamentally different from the typical “court decision” characteristic of lawsuits, typical of lawsuit proceedings.
The main subject of requirements in the framework of writ proceedings (and in Russian legal practice is actually the only one) is debt obligations. As such, the plaintiff and defendant are not provided for by this judicial institution. However, there is an interested person - the claimant (creditor) and, accordingly, the debtor. The first, through the court, makes demands on the second.
In turn in lawsuit subjects of litigation can be represented in a very wide range, it is not only debts.
In their structure, those processes where there is a plaintiff and a defendant are incomparably more complicated.
The lawsuit and order proceedings differ in many aspects. Denote, however, the most significant.
Firstly, in court cases of the first type, testimony is almost always taken into account, evidence, arguments of the parties, etc. Order production in almost all cases involves the study of only documents.
Secondly, lawsuits admit that there is a certain subject of dispute. In the order proceedings it is not. It is assumed that what the claimant requires is not subject to dispute. Although, of course, the debtor can quite objectively raise objections to the subject of its obligations (we will consider this mechanism today).
Thirdly, the enforcement proceedings (if we talk about Russian practice) limits the resolution of issues only to those penalties that are associated with sums of money and property. It is not allowed to claim debt to creditors through the sale of real estate.
The main source of law governing order production is the Code of Civil Procedure of the Russian Federation. The standards related to this institution are set out from Articles 121 to 130 of the Code. According to the wording in the law, order-based proceedings are a type of consideration of court cases in a simplified manner. As such, there are no hearings. Some lawyers tend to classify writ proceedings as a pre-procedural stage. Others see it as an alternative to full court hearings.
Story
Order production and a court order, as many historians believe, have been in the practice of Russian jurisprudence since the end of the 19th century. Soviet courts also worked in this format for some time. In particular, the concept of a court order was present in the Code of Civil Procedure of the RSFSR as amended in 1923. However, in subsequent years the demand for this institution declined. As a result, the Code of Civil Procedure of the RSFSR in the new edition, from 1964, did not contain the norms, which included the order proceedings.
In the mid-80s, Soviet judges began to return to similar formats for the consideration of cases.In particular, some decisions on which alimony was to be exacted were subject to immediate execution - exactly as provided by the institute of a court order. And the main rules governing it were already fixed in Russian legislation by the mid-90s.
The institute of judicial proceedings is in many other countries. In particular, it exists in a format very close to the Russian one in neighboring Belarus. Moreover, some interstate agreements between Russia and Belarus imply the extension of the legal force of a number of documents to both countries. If, for example, a Belarusian creditor initiated a writ of order in the Republic of Belarus, at home, then debt claims can be claimed from the debtor, even if he lives in Russia.
Court order
Execution of decisions within the framework of writ proceedings is carried out on the basis of a special order. This is a court order.
This is a document representing a judge’s decision, which is issued upon the fact of the relevant application of the creditor to recover amounts or their property equivalent from the debtor.
A court order comes into force (can be used as an executive document) after 10 days from the date of its adoption. The structure of court orders, as well as the factors of their legal issuance, we will study today.
The document in question is usually submitted to the bailiff service. Their next task is to legally recover a debt from a citizen, the legitimacy of which is confirmed by the court, provided that the debtor himself does not deny the fact of obligations to the creditor. What does it mean? Now we learn by studying the algorithm of production excitation. As well as the circumstances of the relevant decision.
Excitation of production
The essence of the order production we have identified. Let us now consider in what cases citizens or organizations have the right to use this kind of interaction with the judiciary. The most important criterion here is a proven, documented violation of the debtor's material rights by the debtor.
What are the grounds for issuing a court order? This document can be executed on the basis of the following types of evidence:
- notarized stages of the transaction between the collector and the debtor;
- simple written formats for concluding debt agreements;
- documents reflecting non-acceptance.
In addition, there is an option that a court order will be issued on the basis of other collection requirements. These may include:
- child support (which is not related to the establishment of paternity, motherhood or contesting such statuses);
- arrears in collecting taxes and other payments to the treasury;
- non-payment of wages (calculated on the basis of an employment contract);
- costs of the search procedures for the debtor (defendant);
How is enforcement proceedings instituted? The most important condition is the will of the interested person, the creditor. Justices of the peace are responsible for issuing a court order in accordance with the competence prescribed by law.
In some cases, prosecution authorities may be involved in cases of writ proceedings. This is possible if, for example, the creditor, due to objective circumstances, cannot independently exercise its rights. In this case, in accordance with the law, the prosecutor may defend his interests.
Statement
Excitation of order proceedings is carried out on the basis of a statement from a claimant drawn up in writing. What are the basic requirements for this document? It should contain the following items:
- name of the court where the document is sent;
- Name of the claimant, his place of registration or actual location, the same thing about the debtor;
- a list of requirements on behalf of the applicant, as well as the essence of the circumstances underlying the requirements;
- list of documents confirming the legitimacy of the requirements.
Actually, papers on the fourth paragraph are attached to the application. In some cases, the application, under the third paragraph, may include the value of the claimed property.
The document sent to the court, the collector must certify either with his signature, or draw up a power of attorney for another citizen. At the same time, it is not necessary to indicate personal information about the representative in the application.
Grounds for refusal of production
As soon as the judge receives a statement, he makes a determination, which becomes the basis for the initiation of proceedings, relating to the type of order. But he will do this only if the document is correctly executed, and the requirements set forth in it will be substantive.
The court is competent, having accepted and examined the application, refuse the claimant and thereby not initiate the corresponding proceedings. According to experts, there is no norm defined by law that would reveal the factors of a judge’s possible refusal to accept the application. There are only a few fairly general rules specified in the articles of the CPC governing another type of production - the lawsuit.
In what cases is a judge highly likely not to accept a statement to institute a writ of order? General for this reason are stated in the 134th and 135th articles Code of Civil Procedure of the Russian Federation. Special - in the 125th. Among the most frequently encountered in practice, as noted by Russian lawyers, is the lack of necessary information about the identity of the debtor's claimant or the presence of clearly erroneous data in the application.
Judgment
Consider the order of order proceedings in terms of the judge’s work with the main document reflecting his progress. In what cases it can be canceled, we have identified above. What is the practical procedure for making it?
There are not many conditions here - the order proceedings are a simplified version of the resolution of civil disputes. A court order may be issued if:
- the collector presented to the court all the necessary documents that clearly confirm the debt obligations;
- if the subject of the dispute is fundamentally absent;
- if the debtor has no objections to the nature of the collection (or did not have time to draw them up within the prescribed time).
A judge, having received a statement on the initiation of a writ of order, in accordance with the norm under Article 126 of the Code of Civil Procedure, makes a corresponding decision within 5 days. No hearings are held. The court order is drawn up in the amount of two copies. One for the court, the second for the claimant. The debtor receives a copy of the document. True, the law does not define, as experts say, the period during which it is delivered to a citizen.
There are 10 days during which the debtor can present reasonable objections to the court upon issuing the order. If any, then the previous decision may be revoked. In this case, the claimant will most likely be asked to apply to the court as part of the lawsuit. At the same time, the judge’s decision regarding the cancellation of the order is not subject to appeal.
If there are no objections from the debtor, then the recoverer has the right to apply to initiate enforcement proceedings to initiate enforcement proceedings. The second option is to petition the court to send an order through interdepartmental channels. Both collectors can do this within three years from the receipt of the document in their hands.
Stages of order proceedings do not require the obligatory presence of the debtor. Almost the only option for his participation in the process is the submission of objections. Or, as an option, resolving issues with debt outside the court, in the process of personal agreements with the creditor.
The difference between a court order and a decision
At the very beginning, we outlined the question of how the concept of order proceedings differs from the lawsuit, and identified basic criteria that explain the difference between these institutions.It will also be useful to examine the differences between a court order and a decision.
The first type of document is characterized primarily by the fact that it is issued upon the fact of the sole examination by the judge of the documents submitted by the collector. The decision, in turn, is based on the study of a large number of other evidence.
A court order, as we noted above, may be revoked. The decision is not subject to revocation or amendment. These procedures against him can only be done by a higher court.
The decision, as a rule, consists of four basic parts: introductory, descriptive, as well as motivational and final (resolutive). The court order, in turn, consists of only two: introductory and resolutive.
A court order may immediately be applied as an executive document upon its issuance (and the expiration of the appeal period). The decision does not have such power. It requires the subsequent execution of a separate writ of execution.
Is it possible to order proceedings in a civil process as part of it? Of course. However, it is a completely separate institution of judicial proceedings. Which in essence, and in terms of characterizing documentary sources, differs significantly from civil cases in the framework of statements of claim.
Documentary Nuances
Consider a few examples that reflect the criteria for the validity of a court order. As we said above, an appropriate decision can be made on the basis of a transaction between a claimant and a debtor executed by a notary. What are the requirements for documents accompanying an application to the court as provided by law?
The 163rd article of the Civil Code of the Russian Federation says that notarization is mandatory for certain types of transactions, however, the parties to the agreement have the right to carry out it, even if by law such an action was not required. Order production does not allow consideration of void transactions that may be recognized as such if the notarized form of their certification was not observed. At the same time, if one or another type of transaction in accordance with the law was not subject to the notary’s endorsement, however, the obligations on which were fulfilled by the collector, the court is likely to satisfy the relevant requirements and obliges the debtor to settle.
Thus, some experts believe that in judicial practice there may be some bias in the legislation in favor of claimants. In addition, some lawyers who advocate this point of view call attention to the fact (we noted above) that the law does not specify the time frame in which a copy of the court order is delivered to the debtor. It may well turn out this way, they believe, that a person who almost certainly does not agree with the requirements of the creditor will simply not have time to react in time to the fact that the court issued an appropriate decision in respect of his.
Another nuance. On the one hand, the Code of Civil Procedure of the Russian Federation allows you to claim amounts from debtors for taxes and fees. On the other hand, the Tax Code of the Russian Federation in those norms that are contained in its current version, instructs the Federal Tax Service to recover the relevant payments to the treasury through lawsuits, but not by writ.
Contents of the order
What should be in a court order? Its main feature, as we have determined, is that it simultaneously carries the functions of a court decision and an executive document. For this reason, the main requirement for this document is the completeness of information reflecting the essence of the claims of the collector against the debtor. It should contain all the necessary information for subsequent correct execution.
Consider the other mandatory components of a court order. Based on the 127th article of the Code of Civil Procedure, we can draw up the following sample. Of course, a court order may not initiate order proceedings in accordance with its structure, but as a guideline, it is quite suitable.
Article 127 of the Code of Civil Procedure requires that an order contain:
- court number;
- date of issuance of the relevant decision;
- the official name of the court;
- Name of the judge who issued the order;
- Name and address of the claimant (and if it is a legal entity - the name of the organization), the same with respect to the debtor;
- references to laws that are the basis for the order;
- the amount of money to be recovered;
- movable property, which the creditor considers legitimate to claim, its assessed value;
- the amount of a possible penalty or interest stipulated by law or the terms of the transaction between the claimant and the debtor;
- the amount of the state duty paid by the applicant (which the defendant will have to pay in accordance with the law);
- details of the current account of the collector.
Depending on the grounds for issuing the relevant decision, other information may also be indicated in the judicial document. For example, if it is a matter of collecting alimony, then the debtor's place of birth (as well as the date), the name of the organization in which he works, the name and date of birth of the children (for which there are financial obligations), the amount of payments that are subject to monthly collection, and their term.
