Art. 128 of the APC describes the measures taken by a judge if he considers that the submitted application does not fully comply with the requirements of the law. What are the reasons for this? How do the court and the parties act and what are the consequences of such a decision?
Law and lawsuit
A lawsuit or other application submitted to a court for consideration as part of the arbitration process must meet a number of requirements. If they are not executed, then the statement remains without movement. The initiator of the lawsuit is given time to correct errors. If it fits within the allotted time, it is believed that he filed a lawsuit at the time of transfer to the judge.
What the servants of Themis pay attention to, after all, Art. 128 agribusiness has a referral nature? She, in fact, refers to other provisions of the code.
Court action
The package of documents is handed over to the judge, and his assistant checks the fulfillment of the requirements by the plaintiff. If deficiencies are identified, a determination is prepared within 24 hours and sent to the plaintiff.
The definition shall indicate:
- name of court;
- surname and initials of the judge;
- brief information about the submitted application;
- violations that, in the court's opinion, were committed in the preparation or filing of a claim;
- the time period given to the plaintiff to submit to the court the missing materials, documents, or a new version of the already amended claim;
- judge's signature and seal.
The determination is sent by mail and simultaneously posted on the Internet with a digital signature on the court portal. Participants in the process and other citizens have access to it.
The described actions are not reflected in Art. 128 agribusiness, but are fully consistent with the provisions of the law, other regulations and the practice of their application.
Application Nuances
The provisions of the article under discussion are formulated quite briefly. It is understandable, it is impossible to state all the violations that may be committed. It’s easier to point out the desired behavior. Citizens or entrepreneurs who are faced with judicial practice for the first time or rarely do not understand this, wondering where the court got this or that claim. Indeed, it seems that the code does not contain a word about him.
Take Art. 93, 263, 280 and 128 of the agro-industrial complex, they are devoted to the requirements for applications submitted to the court (claims, for securing a claim, appeal, cassation). Link to Art. 128 goes directly or indirectly when it comes to them.
It is also legitimate to talk about the application filed to initiate bankruptcy proceedings and all others that are not mentioned.
What grounds does the court have
In Art. 128 of the APC of the Russian Federation with comments, it is noted that the applications are checked for compliance with three criteria: the form, content and proper execution of the attached documents.
From the definition of leaving the claim without motion it is almost always clear what exactly the judge wants.
Application form
In this case, a form is a way to present a claim or statement on paper or in electronic form. If everything is clear with paper, then difficulties arise regularly with the second option. For example, when filling out a claim form on the court’s website, they forget that the document must be signed with an electronic digital signature. The process of downloading electronic versions of documents and the requirements for them, in particular the receipt confirming payment of state duty, are not as easy as we would like.
Clarifications in the provision on the procedure for filing a claim approved by the Armed Forces of the Russian Federation are not enough to completely solve all the problems associated with the implementation of Art. 125 and 126 agribusiness as applied to electronic services.
Statement content
Art. 128 APC refers to Art. 125 APC, describing the structure of the statement of claim. These paragraphs also apply to applications in a special proceeding, as part of an appeal against the actions of authorities, the legality of their acts, etc.
Practicing lawyers note that applicants rarely do not indicate one of the points, rather they do it incorrectly or not in full. For example, the law requires the plaintiff to provide exhaustive information about himself, in particular the date of birth or registration number of the company. The requirement is sometimes ignored, and as a result, the application remains without movement.
It is more difficult if the claim does not include a calculation of the amount to be disputed, or there are no references to regulatory acts that, in the applicant's opinion, were violated by the defendant or the circumstances of the dispute are unclear.
Statements of fact-finding, challenging the actions of officials are also subject to additional requirements related to the specifics of the case.
Comments Art. 128 AICs offer different approaches to assessing where the boundary of violations is. The role played by the regional practice, developed by local arbitration courts.
Documents attached to the application
If in a civil case a lawsuit can be filed without an additional package of papers, then in an arbitration case everything is the other way around.
For example, an entrepreneur attaches a registration certificate, a similar document is provided by a legal entity, as well as a copy of the charter or constituent agreement.
The representative confirms his authority not only by power of attorney, but also by the fact that the person who issued it had the right to do so. An extract from the order on the appointment or a copy of the charter certified by a notary is attached to the case file.
Copies of documents provided by the plaintiff are certified by the signature of the authorized person and the seal of the organization (for individuals who do not have it, this is optional). Comments on Art. 128 APC of the Russian Federation are often referred to at the moment.
The law obliges the plaintiff to prove that copies of the claim and the documents attached to it were sent to other participants in the process. The absence of a notice and an inventory of the investment ensures that the application is left without movement.
Term Recovery
One of the reasons for the court to leave the lawsuit motionless is the absence of a request to restore the term or the absence of sufficient arguments on which the plaintiff considers the pass valid.
Practice Art. 128 of the agro-industrial complex in terms of its application in terms of timing shows different approaches, in particular, which reasons are valid. The judge proposes to submit new arguments or immediately refuses to accept the application if the request is made, and the arguments are considered unconvincing.
If the plaintiff is late with corrections
Timing is calculated according to specific standards. For example, the main thing is to submit documents to the post office on time, if it is not possible to submit them to the office on time. Thus, if the documents were transmitted on the last day of the term, it is not considered to be missed.
Judges or court staff who do not have significant experience may rush to issue rulings on the return of the claim due to unresolved deficiencies.
What to do in such a situation if, as a result, the limitation period is missed?
There are two options:
- to file a complaint on appeal because of the hasty return of the claim and the case to be returned to the judge, and therefore he will open the case;
- to file a lawsuit again with a request to restore the deadline due to the fact that earlier the court decided excessively quickly to return the documents.
The first option is considered more acceptable. In this case, in both cases it is necessary to prove that the requirements of the court were fully complied with, otherwise the complaint or request for the restoration of the term in a new lawsuit is recognized as unfounded. Indeed, if the judge had received the documents, he would have returned them anyway, since only a part of his instructions has been fulfilled, as noted in the comments to Art. 128 agribusiness of the Russian Federation.
According to the law, a complaint is filed against the ruling on the return of the claim. It sets out the arguments about the illegality of both judicial acts. In the case of the arbitration process, the ruling on abandonment is considered an interim court action.
Finally
The judge has the right to leave the claim without motion, referring to the violations committed during its filing or execution.Errors are significant or insignificant, but sufficient from the point of view of the law.
Serious errors of content are considered (circumstances are not clear, there are not enough references to legislation, etc.), it is sometimes more difficult to deal with them.
Judicial practice is not the same, and even in one court the same problem is viewed differently.
Interestingly, after the opening of the proceedings, the judge is not entitled to leave the lawsuit without motion or to return it for the same reasons.
In general, this right serves the benefit of the plaintiffs, who get a chance to remove the defects in the lawsuit, which the defendant could then refer to.