The court regularly reviews numerous civil cases, the main purpose of which is to recover funds from the perpetrators of various events and incidents. Often it is necessary to face the fact that people who are defendants try to hide their income and valuable property so that in the future various items are not confiscated and sold at auction by bailiffs. Therefore, to preserve these items interim measures are applied in the Code of Civil Procedure. Their main goal is the protection of property belonging to the debtor and the defendant.
The concept of interim measures
They are represented by special events designed to secure the claim. When applied, the defendant has no opportunity to sell, donate or destroy the existing property.
According to the Civil Procedure Code, interim measures are applied on the basis of an application submitted by the plaintiff. The statement must have strong justification and evidence of the need to apply these measures. Otherwise, the court will refuse to use them.
The rules for the application of these measures are prescribed in article 140 of the Code of Civil Procedure of the Russian Federation. When using them, restrictions are placed on the rights of the defendant in relation to his property. In this case, the court may demand from the plaintiff compensation for losses that may arise from the defendant due to the availability of these encumbrances.
Legislative regulation
Basic information on how security is applied in civil matters is contained in Chapter 13 of the Code of Civil Procedure. This normative act indicates on what grounds these measures are used, and also how they differ from the measures used in the framework of the agro-industrial complex. The basic rules for the application of measures to secure a claim in a civil proceeding are as follows:
- there is no preliminary security, so the procedure can be carried out only after the start of the lawsuit;
- the measures applied to the property of the debtor must be proportionate to the requirements specified in the lawsuit;
- the defendant may demand compensation for losses arising from such measures if the claim is not satisfied.
The decision is made solely by the court, for which it is assessed the possibility of using various fraudulent schemes by the defendant to conceal existing property.
Process goal
According to the Civil Procedure Code, interim measures are used to protect the defendant’s property from sale or other actions aimed at concealing or eliminating it. Not only the plaintiff can act as an initiator for the introduction of these measures, so the corresponding application is often submitted by the prosecutor or other interested parties.
Many people, when they receive information that an application has been filed with them in court, try in many ways to protect their property so that it is not sold at auction by bailiffs. Therefore, cars or apartments are promptly issued to relatives or friends, purchase and sale contracts or gift certificates are drawn up. Money is withdrawn from bank accounts, and other valuables are sold. This leads to the fact that the claims cannot be satisfied due to the lack of funds from the defendant. Therefore, participants in civil proceedings often require interim measures.
Reasons to use
In civil cases, such measures are applied quite often. But at the same time, the judge must verify the validity of their use. The security for the claim is represented by the action of the court that accepted the particular case for consideration.
Not only the plaintiff can act as the initiator of the application of interim measures, since even the prosecutor often realizes the need for such actions. Additionally, other interested parties may insist on their use. These include guardianship authorities, legal representatives of a minor plaintiff or other persons.
The main reason for applying interim measures in a civil proceeding is the likelihood that the defendant will be able to use different methods to enable him to hide or sell his property. Under such conditions, there will be no opportunity for the plaintiff to recover from him the necessary amount of funds.
How are they used?
To use interim measures certain actions must be performed by the plaintiff:
- Initially, a statement is prepared, and it can be written and submitted to the court at any time during the consideration of a specific case;
- the application is considered on the day of its adoption;
- the court decision takes effect immediately, therefore, a writ of execution is issued to the applicant;
- then this document is sent to the bailiffs involved in the enforcement of court decisions.
It is taken into account that the application of such measures is allowed only on condition that they comply with the claims. Therefore, applications in which it is required to impose an encumbrance on the apartment will not be considered if the amount of the claim does not exceed 10 thousand rubles.
How to make a statement?
In the Code of Civil Procedure, interim measures are applied solely on the basis of an application received from the plaintiff, prosecutor or other interested parties. This document must contain the following information:
- information about the defendant and the plaintiff;
- subject of action;
- the amount of the plaintiff's claims, as based on this information the judge will be able to understand whether the application of interim measures is appropriate;
- please take advantage of such encumbrances to prevent unlawful actions by the defendant;
- the plaintiff’s concerns related to the fact that the property of the defendant can be quickly sold are indicated.
In the end, it is advisable to prescribe that if these measures are not taken, then the plaintiff's claims will not be satisfied due to the lack of property of the defendant.
Types of measures
Interim measures in the civil process are presented in several varieties. All of them are listed in Art. 134 GIC. These include:
- seizure of the property of the defendant, moreover, this method is usually applied to apartments, houses, land or cars registered exclusively for the defendant;
- seizure of a citizen's bank accounts;
- a ban on the performance of various actions, for example, on the transfer of property to third parties;
- stop selling property;
- suspension of various penalties on writ of execution issued by other courts, if the debtor disputes them.
All of the above activities can be used individually or in combination. If the defendant does not comply with various prohibitions, then he is held administratively liable, therefore, he pays a fine of up to 100 minimum wages, and also additionally covers losses incurred by the plaintiff.
The collateral can be applied not only to cash or property, but even to copyright, so a ban is placed on the publication of various works. The legislation does not provide for the number of measures that can be applied to one defendant.
Application procedure
Each participant in the process should understand the features and concept of interim measures. The procedure for their application is divided into successive stages:
- based on the application received from the plaintiff or interested person, a decision is made by the court regarding the need to use these measures;
- a special ruling is being formed that will be passed on to the bailiff selected as the executor in this case;
- often the plaintiffs themselves request this definition, therefore a copy of the document is transmitted to the applicant;
- the defendant is not notified of the measures taken, therefore they are effective, since the citizen does not have time to carry out any actions aimed at hiding the property;
- information about the restriction is sent to the Federal Registration Service and the State Traffic Safety Inspectorate, as well as to other state bodies, therefore it will not be possible to conclude any transaction on the basis of which the property is transferred to third parties;
- the arrest of the accounts is notified to the bank where the citizen has a deposit or accounts;
- bailiffs are engaged in the search for property registered with the defendant.
A citizen to whom these measures are applied has different rights and opportunities. He may demand that certain measures be replaced by other restrictions, for which a statement is made to the court, so the arrest of an apartment can be replaced by the arrest of a car. This takes into account the proportionality of the requirements. Additionally, the defendant may offer to deposit money in court deposits. This amount should be equal to the size of the risk. Under such conditions, all encumbrances on property belonging to the defendant are removed.
When do measures end?
A determination is made by the court for the application of interim measures. It contains information on what actions should be performed by bailiffs for the preservation of property belonging to the defendant in a particular case. Such burdens are removed under the following conditions:
- the court takes a negative decision on the suit, and the bailiffs must notify the Federal Register of State Traffic Safety Inspectorate, traffic police and other state bodies about the removal of the burden;
- the plaintiff submits an application on the basis of which the encumbrance is removed;
- partial satisfaction of claims, and the court in the remainder of the claims may retain the effect of certain interim measures;
- suspension of production, which leads to the automatic lifting of arrests and bans.
Regardless of the decision made by the court, each participant in a civil proceeding in respect of which interim measures are applied may challenge the application of such restrictions. For this, a corresponding protest is being formed. It can be submitted not only to the court, but even to the prosecutor. This is due to the fact that Russian law protects not only plaintiffs, but also defendants.
Rules of appeal of the ban
Defendants in various civil cases find out that different security measures were applied to their property or money after an arrest or ban was imposed. However, they may not agree with such a court decision. The court canceling interim measures is possible on the basis of a statement drawn up by the defendant. For this, the features are taken into account:
- a private complaint is drawn up within 15 days after the citizen was notified of the determination made by the court;
- the complaint shall indicate the grounds for the cancellation of measures;
- Additionally, you can specify the requirement to replace certain measures with other restrictions.
If a court seizes property whose value significantly exceeds the amount of claims, then such a decision is easily disputed. Such situations include seizure of an apartment in the presence of claims for 50 thousand rubles.
What requirements are included in the application?
When drawing up an application for the cancellation of interim measures, the defendant may require different actions from the court:
- a citizen suggests transferring the required amount of funds to a bank deposit, which leads to the complete removal of restrictions;
- full cancellation of collateral is required due to the lack of proportionality of the requirements and measures applied to the defendant;
- replacement of specific measures with other restrictions is required.
Additionally, the defendant may require the plaintiff to cover losses incurred due to interim measures.They are covered if the claims are not satisfied. It is necessary to recover these funds through the court if the plaintiff refuses to voluntarily pay money to the defendant.
Conclusion
Interim measures are often used when considering various civil cases. They allow to ensure the safety of property and money of the defendant. They are applied solely on the basis of a statement drawn up by the plaintiff or other interested parties.
Measures are taken based on the statement of the defendant or after the end of the trial. A person who has faced various burdens may, at the end of the proceedings, claim damages from the plaintiff if the claim is not satisfied by the court.