Order proceedings - this is the activity carried out by the courts in the manner prescribed by civil procedure law. Its main purpose is to provide the ability to quickly repay debt, wages, property illegally appropriated by someone, etc.
Next, we consider the features of order production in the arbitration process (introduced in 2016), the main principles, as well as some of the requirements put forward for individual stages of this type of activity.
General concept
Enforcement proceedings - this is the activity of the courts, provided for by Chapter 11 of the Civil Procedure Code (Code of Civil Procedure) of the Russian Federation. It says that this type of production is the consideration by the court of cases regarding the collection of debts and the return of illegally misappropriated goods to the legal property of a certain person (or group of persons), as well as making decisions on them.
Practicing lawyers note that order-based proceedings are a rather convenient way to restore their material rights. Moreover, it is recognized as the fastest of all presented by modern law.
Let us consider in more detail some features of order proceedings in the arbitration process.
Distinctive features of the production of the order type in the arbitration process from other types
It is worth paying attention to the fact that the order proceedings in the arbitration process have certain differences. To put it as briefly as possible, they conclude that:
- it does not call witnesses or representatives of the parties, etc .;
- the judge has 10 days to issue an order;
- in the arbitration process, only those cases may be considered, the amount recovered for which does not exceed 400,000 rubles;
- civil proceedings do not provide for the electronic version of a court order, along with two copies of it, presented on paper.
It is worth noting that in fact, some inexperienced lawyers confuse order proceedings with a simplified one. The main difference between these forms is that decisions can be made by order only in cases of a certain category designated by law, while a simplified review is carried out only in relation to those cases that have a low price for a claim. In addition, the law defines a list of cases that cannot be considered in a simplified manner, some of which include:
- related to the preservation of state secrets;
- administrative
- for special production;
- affecting the interests of minors.
Normative regulation
The whole process of conducting order proceedings is regulated by two acts of a normative nature in force on the territory of the Russian Federation. These include the Code of Civil Procedure and the Arbitration Procedure Code. In the first of them the general features of conducting the proceedings of a designated nature are prescribed, and in the second - specifically those that relate to the process of the consideration of cases during the arbitration.
Order proceedings were introduced into the arbitration process in 2016 on the basis of Federal Law No. 47 “On Amendments to the Arbitration Procedure Code of the Russian Federation”.
List of Allowable Requirements
It is worth noting that the process of writ proceedings can be conducted only in relation to a specific list of claims. The requirements set forth in them may relate exclusively to those moments that are presented in the list provided in Art.122 of the Civil Procedural Codec of the Russian Federation, as well as in the norms of the Arbitration Procedure Code. These include:
- all those arising from non-performance of the contract (provided that they were based on documents confirming the existence of monetary obligations between the parties);
- claims based on notarial protest of a bill of exchange for non-acceptance, payment or non-dating of acceptance;
- regarding the collection of sanctions and payments of a binding nature (only provided that the total amount of the declared amount does not exceed 100,000 rubles).
The legislation noted that the total price of the claims should not exceed 400 000 rubles (in some - 100 000 rubles). In the event that the specified requirement is not complied with and the price of the claim is significantly higher than the allowable, the claimant should file a statement of claim in the manner of general proceedings.
With regard to the nature, requirements put forward by order of production in the arbitration process, all of them must be solid and indisputable. This rule excludes the possibility of conducting order proceedings in general if, in relation to the stated requirements, there may be at least some doubt about the emergence of the right to appeal to the court for proceedings.
In the process of studying the submitted requirements, the judge must establish the fact of the absence of a dispute based on some factors, which include:
- the presence of production practices for decision-making on similar issues;
- the presence of a sufficient amount of the evidence base that was provided by the applicant in the case;
- the absence of any objection on the part of the debtor regarding the submitted claims (or even the availability of his consent with them).
In a number of claims put forward during the execution of the order proceedings in the arbitration process, those that relate to compensation for non-pecuniary damage cannot be found.
Application Form Requirements
The norms of the above acts prescribe certain requirements for the form in which the application submitted to the court must be submitted. It is indicated that it can be provided either in electronic form or on paper. The same applies to all documents attached to it.
It is worth paying special attention to the fact that any document submitted in electronic form must have an electronic signature affixed by filling out a special form posted on the website of the Arbitration Court of the Russian Federation.
Requirements for the content of the application
Considering what the order process in the arbitration process and its main features, it is certainly worth paying attention to the content of statements submitted by the parties in the framework of its conduct. So, in its content must certainly be indicated:
- the exact and full name of the court to which the claim is filed;
- the name of the collector with all his personal data (F. I. O., place of residence, contact details, place of work, state registration number, bank account details, etc.);
- the name of the debtor indicating his personal data;
- claims made by the claimant;
- grounds for nominating these requirements;
- list of attached documents confirming the validity of the requirements;
- general list of all attached documents.
The submitted application must certainly be signed either by the exactor himself or by his representative (if any). In the event that there is a representative of the claimant, then a document confirming his authority must be attached to the application, and also indicated in the general list.
A document confirming the fact of payment of the state duty in the prescribed amount must be attached to the submitted application.In the event that, for any reason provided by law, a person can be exempted from paying the prescribed amount, among the applications there must certainly be a document confirming the basis of the benefit.
Production Procedure
The specifics of the order of order proceedings in the arbitration process are prescribed in the provisions of the RF agribusiness. They indicated that, based on the results of the consideration of the application, the judge is obliged to issue an order that must be executed as soon as possible or refuse to issue one. The legislator establishes a certain period of the order proceedings in the arbitration process - 10 days from the receipt of the application to the court registry.
A court order is a document that must be submitted in electronic form, with an enhanced electronic signature. After making a decision on the application, a copy of it is immediately sent to the debtor within five days. One of the copies of the decision must be in the case file.
An order issued as part of a writ of order in the arbitration process shall enter into force 10 days after the debtor receives a copy of it in his hands (this date must be documented).
How an order is issued
Considering the features of conducting cases of writ proceedings in the arbitration process, it is certainly worth paying attention to the order of issuing orders.
So, an order is issued only if there is no reason for the person to refuse this. In cases considered during the arbitration proceedings, no more than ten days from the moment of receipt of the application by the court registry are allotted for this. After issuing the order, it must be presented in at least two copies, one of which is necessarily filed into the case, and the second is sent to the debtor.
As for the content of the court order issued in the course of the consideration of the case within the framework of the arbitration process, it must certainly include:
- name court;
- F.I.O. of the judge considering the case;
- decision date;
- details of the debtor (F. I. O. or name, place of residence or registration, legal address of the organization);
- personal data of the claimant (F. I. O. or name, contact information, place of registration);
- the rules of law referred to by the court in the decision-making process;
- the amount of money to be recovered (in cases where the recoverable item is a specific property, then information regarding its location must be indicated);
- the amount of the fee established by the state for recovery from the debtor.
It is worth noting that all of the data listed are mandatory for indication, however, in addition to them, some other data may be indicated (for example, details of those accounts to which the collected funds should be directed).
It is worth noting that since the receipt of the document in hand, the debtor has ten days allotted to cancel the order.
Cancellation of a court order
The order of order proceedings in civil and arbitration proceedings provides for the possibility of returning the filed application or appealing it.
As regards the cancellation of the order, this action may be taken if the judge receives from the other party a well-formed objection to it. It should not be forgotten that in order to cancel an order, a debtor who does not agree with the requirement put forward to him must apply to the court no later than ten days after receiving a copy of the document. In the event that the specified period has been violated, the protest is not considered by the judge in arbitration and is returned to the person who filed it. An exception may be the case when this person was able to justify the validity of the reasons for the late submission of the protest, which should be documented.
It is worth noting that during the conduct of writ proceedings in the arbitration process, the rules for securing a claim cannot be applied. It also excludes leaving the application without consideration, filing a counterclaim, suspending production or terminating it. This feature of writ proceedings in the arbitration process is summarized in the contents of Part 7 of Art. 229.5 Arbitration Procedure Code of the Russian Federation.
Features of appeal of a court order
In the Russian Federation, clerical proceedings in the arbitration process provide for the possibility of appealing the issued order in cassation.
The legislator devotes no more than a couple of months to the action in question, the calculation of which begins from the moment the act has entered into legal force. In this situation, the procedure for reviewing the contents of the order is carried out on the basis of the provisions contained in chapter 35 of the Arbitration Code of the Russian Federation, using some of the features reflected in Art. 228.1 of the same regulatory act.
It should be borne in mind that the legislator provides for shortened cassation review of orders issued during the course of the arbitration process - 15 days. The calculation of this period begins from the moment the cassation-type complaint is received against the issued order. Such complaints may be dealt with solely.
Can the application be returned?
In accordance with the concept presented in the law, writ of order in the arbitration process is a certain procedure for the consideration of cases, which can be carried out in strict accordance with established requirements. In the event that they have not been partially or fully complied with, the court has the full right to return the submitted application and to ignore the request.
So, on the basis of the provisions presented by the law in force in the Russian Federation, the execution of a writ of order in an arbitration proceedings may be refused in cases where:
- the case does not relate to the jurisdiction of the court to which it was filed;
- the applicant violated the requirements regarding the form for submitting an application for the issuance of an order, or its content does not correspond to the permissible (based on Article 229.3 of the Arbitration Procedure Code of the Russian Federation);
- the debtor actually lives outside the territory of the Russian Federation;
- in the submitted application, the presence of actual disputes regarding a certain right is traced.
In addition to all of the above, on the basis of the provisions presented by the legislation of the Russian Federation, the applicant has the full right to submit a request for the return of the document and the withdrawal of all the stated requirements. It is worth noting that this is possible only until the court makes a determination in the case.
The legislation defines a clear time period during which the court must make a decision regarding the return of the application for the issuance of a court order - three days, the countdown of which is carried out from the moment the document is received by the court registry.