Every lawyer knows that the claim work with contractors since the summer of 2016 has become a mandatory step in resolving the dispute. But in fact, in judicial practice, such an order was introduced into contracts, starting in 2013.
Event organisation
The claim work gave and gives the opportunity to make a decision as to what to do next with the dispute that arose. Here are the main questions that concern most lawyers:
- How should the requirements be formulated?
- How to file a claim?
Lawyers in different cities are in favor of the fact that the document must be in fact a statement of claim. That is, in the claim work should be indicated not only the address of the correspondent where it all goes, but also the circumstances on which the requirements of the interested person are based. In this case, it is also desirable to list the evidence, because in the future it will be necessary to write private complaints and explain to the arbitration that the precision order has not been observed. Thus, it makes sense to complicate the claim work only when the lawyer is going to delay the consideration of the issue. Otherwise, you should immediately enter evidence of guilt and formulate requirements for the counterparty.
The procedure for the description of the penalty
Despite the fact that lawyers are required to formulate the claim of the bearer, there is also a certain fine line here.
Some courts, when the provision on claims work is specified, put forward their claims, which are not in the general document. Thus, some of the most common questions are:
- How to calculate the penalty, whether to register it in full and provide all the numbers or designate them abstractly?
- In this case, is it necessary to note that all other claims that were not specified in the provision on the claim work can be subsequently recovered in court?
For example, in the northwestern district of the Leningrad Region and in St. Petersburg in particular, arbitration is inclined to the need to give a full report. That is, you need to count absolutely all the numbers.
But most lawyers, in fact, make 50 to 50. You can take a certain period of time and calculate it, and for the rest of the period make the general wording that everything not specified in this letter will be subsequently reflected in the final statement of claim, in if the requirements are not met on time.
On the sample provisions of the claim work clearly shows how to describe each paragraph of the document.
Some subtleties of the procedure
Most often, claims also require references to the rule of law and footnotes of the contract on which the agent is based in its requirements. But this is not necessary, because if a person sends a claim, and immediately indicates a reference to the rule of law, then the counterparty has the opportunity to provide some kind of compensation steps.
What is the claim-related work at the enterprise in general? First of all, this, of course, is a document on which a dispute of two or more parties is recorded.
Depending on the content of the claim, the company can either satisfy it voluntarily, or still go to court in the future. And that is why it is mandatory to indicate the list of attached documents.
Advice: many lawyers advise not only to collect the necessary papers, but also to indicate that when the agreement was agreed, everything was duly certified and signed by an authorized person. This is necessary because in the subsequent (in arbitration) it often turns out that the documents were approved by a person who was never listed in the organization at all.
Claim work
The dispute specified in the letter must correlate with the text of the contract. And it is also advisable to see how the complaint procedure is followed according to the documents.
When work is underway with a dispute, an even greater problem arises with paperwork in organizations. Of course, all this is individual, but it is still desirable that instructions for such moments be developed.
Shipping procedure
The organization of the claim is very difficult due to the fact that the allocated time is almost always not enough. First, the letter arrives at Frontdesk and only then does it reach the lawyer. Sometimes it may take a whole week from the moment of sending to receiving the document. When the claim department receives an envelope, they need to find a contract, and the response time can be very short.
It is worth noting that today judicial practice provides for a penalty for violation of the agreed terms. Of course, everyone understands that, most likely, the fine will be contractual and will amount to a small amount.
If in a week the claim does not reach the lawyer, then at the time of its receipt all the deadlines may already expire. There are no shortcomings on the part of the employee. But in almost every enterprise, a lawyer is the person who ultimately is responsible for everything.
After the letter has reached the employee, he is forced to respond to this claim in a speed mode, send a response to the counterparty.
In practice, there have been cases when a lawyer in an organization sent a letter on their own, bypassing the outgoing documentation department, to meet deadlines.
Manual processing
If the lawyer managed to send an answer, then the next question, which in practice arises very often, is the interaction directly with the court cases themselves.
In fact, this is the most difficult part for any dispute, including claims and debt collection work. Despite the fact that lawyers, of course, are trying to prescribe the rules of interaction with the court and are developing various methods of conducting the case, in fact, it all comes down to rather banal procedures. The employee simply works out each specific case individually. Of course, the lawyers of each enterprise at the meetings and meetings of the department discuss the procedure and terms of appeal.
As a rule, these moments are determined in manual mode. A separate folder is created for each counterparty and a date is written on it, by which documents must be worked out.
Emergencies
Now it is necessary to imagine that the lawyer who was responsible for this or that dispute became ill, left or another problem happened.
Of course, the solution is obvious - you need to transfer the entire document folder to any colleague. But here it’s worthwhile to understand that a person does not bear any responsibility, therefore if for some reason the new lawyer was unable to work out the situation and the procedure for the claim work is violated, then the matter will naturally become expired.
In 2015, several important orders of the Plenum of the Supreme Court were issued, including a decree on the limitation period. Against this background, many arbitration courts began to interpret this document quite literally. It follows that the limitation periods are now very difficult.
Most often it turns out to restore them when the person concerned does not live on the territory of the Russian Federation, but, for example, is located in the United States of America.Moreover, it is necessary to have evidence that confirms that over the past few years he has not been in Russia.
In all other cases, to prove that the statute of limitations has been missed for a good reason is quite problematic. The arbitration indicates that any organization is a business entity, and, as you know, this way of making money is based on fears and risks.
There are even such situations, for example, after a lawsuit has been filed with a court that companies located in different cities were able to find a compromise and a mutual decision was made to withdraw the statement. But the arbitration still rendered its verdict. The court ruled that, despite the impossibility of being in the territory of St. Petersburg, in which the counterparty lived, the organization could conclude an agreement with a law firm of the Leningrad Region. She would represent her interests.
Modern technologies
Since 2016, conducting claims in court using online resources has become possible. Quite quickly, the dispute can be resolved by working on video conferencing. And also in the same year, it became possible to conduct negotiations not only from the court of another arbitration court, but also, in principle, from any premises of general jurisdiction, if there is such a technical possibility. Thanks to such changes, the amount of penalties for all expenses, of course, is changing.
The explanation is that the court points out: "You had the technical ability to work with your representative remotely, so there is no need to recover from the counterparty in full."
Disadvantages of such changes
It is worth noting here that physical evidence, of course, cannot be transmitted through such a court session. But surveys, testimonies, etc., can also be carried out in your hometown. Despite the fact that this practice is more than one year old, it still remains quite new. Therefore, it is too early to draw any definite conclusions about the changes.
And, despite such a grandiose breakthrough, lawyers continue to “attach” all documents to that very separate folder (manually). But this cannot be done, since it is on them that each concrete case and stages of work are formed.
That is, at the moment, you have to write everything you need (appeals, save receipts for legal expenses, etc.). And also lawyers often start a separate card, in which they write down all the deadlines for open cases. This is done in order not to miss the deadlines. Since a six-month period, for example, in the same St. Petersburg is very difficult to restore, as already mentioned above.
Of course, the legal instruction of the claim work does not include such stages, but it is they that allow the lawyer to simplify the whole process.
Today, there is still the problem of integrating online file cabinets of arbitration cases.
Example. There is one lawyer who works on certain matters, he has a username and password, that is, access to your personal account. Thanks to this technology, he can subsequently see how things are going. Now it is necessary to imagine such a situation that several lawyers work for one dispute at a time. Of course, it is obvious that each of them can go and register and, in the future, keep track of this matter. And this is where the problem arises. But what if one of the lawyers suddenly decides to quit? Of course, this will subsequently raise certain questions:
- How to follow up on these matters?
- And how to determine what has been done and what is not yet?
Contract work
In this area, the main work is as follows:
- Contract comes.
- For this contract you need to make a claim as soon as possible.
The second option differs only in that some additional document comes in place of the main contract and you need to find the original text.
Suppose a contract was entered into by another division of an enterprise in another city. In any case, the lawyer must somehow find this contract. First of all, the specialist starts making calls and asking colleagues to send an electronic scanned version. And it’s good if the staff will help him find the necessary documents.
Modern enterprises are increasingly creating an electronic document management system. In this case, there is a huge chance that the necessary contract was once scanned by one of the employees.
And if, for example, none of the options worked, then you have to do everything manually and sometimes it takes from one to several working days.
If employees, for example, call to another region, and it is forced out that there is no lawyer, the judge or manager is sick, etc., this will further complicate the situation. But in any case, a contract is necessary, because you need to prepare a claim.
As you can see, reading the article, contract management is only part of the organization’s work system. And here again, you need to look at the agreement of the contract, that is, exactly how in this case the offers are received, how the approval procedure goes, etc.
In fact, an electronic document management system, if it exists in an organization, helps to some extent solve problems and speeds up the material search procedure. And there is still such an interesting point, if we touch on the topic of electronic document management, this innovation frees lawyers from the need to constantly read statistics and write reports.
General position
Sample claim work:
A section that contains general information. Usually it is indicated in it:
- persons who are entrusted with the obligation to conduct, resolve claims work at the enterprise;
- goals and objectives set for employees of the legal (claim) department.
- Directly in the work of filing various claims, it is necessary to take into account all the risks and, of course, the costs of them.
- Work to respond to claims from counterparties.
- Claim work and activities during the entire enforcement proceedings.
- Consulate of various interests of the company and communication of absolutely all employees in the process of claims.
- deadline for transferring the process to the employees of the claims department, experts from other industries of the company;
- the right of each employee of the claims department to provide decisions to employees of other industries on the provision of all the necessary information;
- the deadline for employees of other industries to provide the necessary information about the discussion agreement at the request of the employee from the lawyer department;
- It is the duty of the claimants to carry out a study of all possible factors that have led to non-compliance with obligations, and provide recommendations in order to optimize contractual work in the future.
Responsibility for non-compliance with the provision in the claim work itself.