The determination to leave the application without motion is a court act indicating that there are errors in the lawsuit or in the filed application that need to be addressed. They relate to the content and execution, and the obligation to pay the state fee.
Whose powers
The decision to leave the application without movement is made by the court with respect to any application that has come to it. It is adopted at the stage of verification of the readiness of documents for consideration on the merits.
The courts of all instances, with the exception of the subject level, have the corresponding powers (it is they who have the duty to consider appeals). As you know, at this stage complaints are not checked for compliance with the law, it is carried out by the courts of first instance. The case with unresolved flaws is returned back to the first instance.
The courts of cassation and supervisory jurisdiction are entitled to make a decision on leaving the application without motion.
Regulation Features
Some violations are explicitly indicated as the reason for making the decision to leave the application without movement. Other violations apply by analogy to law. For example, to applications under a special proceeding or a writ of order.
The courts of various instances periodically conduct research on this matter. Nevertheless, questions remain.
The reasons for the actions of the court
The average judge is busy with work, and his task in the first place is to meet the deadlines set for consideration of cases. The quality of the solutions is the last thing to which the requirements are actually made. For red tape, the punishment is more serious.
The determination to leave the statement of claim without motion is a fairly simple way to delay the consideration of a case without violating the terms of the proceedings. I must say that finding the grounds is not so difficult. When drawing up a significant part of the lawsuits, at least minimal violations are allowed.
The second reason is to indicate to the plaintiff or applicant about shortcomings that the judge does not formally affect (the method of protecting the right was incorrectly chosen, there is no necessary evidence, etc.). However, if they are not corrected, the case will be lost. Having given a hint in this way, the official in the mantle will avoid unnecessary complaints to the court of appeal. The human desire to help cannot be ruled out.
Another reason is the actions of a lawyer who wants to delay the time of consideration of the case.
Procedure
The assistant judge is involved in the verification of the claim, and it is he who prepares the materials for signature. The decision is taken without a court hearing, only the plaintiff is notified of the results. The court ruling on leaving the application without motion is sent to him by mail.
Legal grounds
The Code of Civil Procedure makes reference to Art. 131, 132. What is the essence of violations in reality:
- not fully indicated and address of residence of the parties;
- the name of the organization and its legal form (LLC, JSC, etc.) are not completely indicated;
- no calculation of debt or damage;
- copies of the claim and documents referred to by the plaintiff are not attached in the right amount or are missing at all;
- the state fee has not been paid, or the court has no data on its payment (the receipt was lost, or the client provided a copy of it);
- no signature of the applicant;
- the signatory has not attached a copy of the power of attorney, or it does not give the right to sign or perform other actions, for example, to submit applications and complaints.
The above are typical reasons for adopting a decision to leave an application without motion in a civil proceeding.It is enough to make only one mistake.
They arise due to the haste of lawyers or a poor knowledge of jurisprudence by ordinary citizens. After all, they most often become visitors to the court.
Document structure
It is performed in paper and electronic form. The paper version is required, regardless of the plaintiff’s desire:
- date and location (city, district, etc.);
- name of court;
- the essence of the dispute, an indication of the parties and the subject or substance of the dispute or statement;
- motives for leaving the claim without motion (reference to Articles 132, 133 and 136 of the Civil Procedure Code);
- list of violations committed during the execution or submission of the application;
- the date before which the plaintiff must eliminate all the shortcomings;
- the procedure and deadlines for filing a private complaint (15 days from the date the court made the determination);
- date of issue and signature of the judge;
- a seal is put in the office, without it the document is not valid.
We note that the judges have a sample decision to leave the application without movement. If you have a ready-made form, there is no need to rewrite a standard document again and again. It remains to change the dates, surnames and reasons for the decision.
Terms of expulsion and execution
Code of Civil Procedure obliges the court to send the decision three days after its adoption. Taking into account the volume of work, the document leaves the court a few days later than it should be. Due to this, a significant period of time allocated to correct deficiencies is allocated. On average, judges give two or three weeks. Russian servants of Themis are free in this part of the process, the law does not limit them, speaking only about the reasonableness of time.
Does the judge have the right to extend the time limit for correction? Yes. The plaintiff must request in advance, justifying it. At the same time, the court is not obliged to agree with her; do not confuse law with duty.
If for some reason the judge’s requirements are not clear, he is advised to visit his assistant for more information.
Consequences of failure
If the determination is not fulfilled in due time, the documents shall be returned to the plaintiff. This time, a ruling on return is issued. If the documents were received on time, but the defects were not corrected or new ones were committed, the papers will be returned to the applicant.
How to act
An appeal makes sense provided there are no errors. If at least one remark is true, the complaint will be denied. The plaintiff may take the following actions:
- rewrite the text of the claim if the claims relate to the content and wording of the claim (except for correcting omissions, it is not forbidden to make useful additions);
- attach missing documents or copies;
- attach a new receipt.
The documents are accompanied by a letter addressed to the judge with reference to the essence of the case and its number (it is easier for a court officer to find the materials of the case).
Finally
So, you have learned that this is a definition of leaving a statement without movement. The court’s right to point out errors in the application, some of which can turn out to be quite fatal for the plaintiff’s prospects.
It is also used to delay time and do other things. The plaintiff can not only supplement the case materials with the missing documents, but also make changes and additions directly to the text of the claim.
The law obliges the judge to describe the violations and give a time limit for their correction. The plaintiff or applicant, disagreeing with the opinion of the judge, has the right to appeal the decision, without waiting until the materials of the claim are returned.