Art. 131 APC describes the actions of the defendant in filing a lawsuit against him. Consider the recall requirements; is it mandatory to forward it? Such questions are of serious importance, since the actions or omissions of the defendant have consequences.
Feedback Value
Art. 131 of the APC refers to the opinion of the defendant on the lawsuit filed against him. Submission of feedback by a special article of the code is regulated. Unlike the civil process, where the right to submit an objection is only mentioned, in the arbitration process the filing procedure and requirements for the document are described in detail.
Right or obligation?
In Art. 131 of the Arbitration Procedure Code of the Russian Federation, the law obliges the defendant to submit a review to the court as regards other persons (referring to third parties both with independent requirements and without them), sending such a document is a right for them. What are the consequences for the respondent of avoiding submitting a recall?
The judge has the right to adjourn the meeting if it is not possible to fully clarify the circumstances without recalling the defendant, and subsequently assign all the costs of the case to him, even if he wins.
In addition, the judge will fully rely on information provided by the plaintiff and other parties to the case if the defendant has not presented his opinion.
Direction order
In recent years, laws have been amended in connection with the use of the Internet, and now all participants in litigation have the right to send documents through the World Wide Web. They do not have to attend a court or mail papers.
On the court ruling on the opening of proceedings, the address is indicated in the database of court cases. Using it, the defendant or the other party have the opportunity to upload documents directly to the court base. And all the information provided in this way becomes available both for the court and for other participants in the process.
According to Art. 131 APC, review is submitted by filling out the form. All documents that the respondent applies are scanned and photos are uploaded to the portal. However, there is one feature. All papers must be signed with an electronic digital signature. Without her presence, documents are not considered to be duly certified and are not accepted by the court.
If the only way to send the paper is to resort to the services of the postal service, then the defendant must send his review not only to the judge, but also to other participants in the process. Information about them is indicated in the papers from the court. To have proof of departure, a notice and an inventory of the attachment are filled out. Then they are attached to the case.
Directions
In Art. 131 of the APC indicates the need to send feedback in such a way that everyone has the opportunity to study it before the trial. At the same time, the judge has the right to give an order regarding the deadlines for submitting documents.
Document structure
The law clearly defines the structure of the document, while violating paragraphs of Art. 131 of the Arbitration Procedure Code of the Russian Federation, which do not interfere with the determination of who it was sent to and what arguments it contains, do not give the court the right to reject the review or refuse to take into account the information provided in it. Below we’ll look at how the document looks:
- information about the court to which the documents are sent;
- information about the plaintiff - place of residence, location;
- the full name of the defendant, information about his location or residence, time and place of birth, place of work, date and place of registration as an entrepreneur;
- objections to the arguments of the claim;
- reference to regulations, evidence substantiating the opinion of the plaintiff
- request for partial or total denial of claim;
- list of attached documents;
- date of departure and signature of the sender.
Some nuances of compilation
In Art. 131 of the APC of the Russian Federation with comments, it is noted about the right to object both to part of the claim, and against all its arguments. The task is to explain why the applicant's arguments are unsubstantiated from the factual and legal side of the case.
What facts or circumstances were missed or intentionally hidden by the initiator of the process. The same applies to regulatory documents. Often, the relations of the parties are regulated not by the norms of codes or laws that are known to almost everyone, but by separate regulatory acts. Examples of this are documents on the protection zone of electric networks. They are known only to a narrow circle of specialists.
What documents are attached?
Some documents are required for the review to be considered complete:
- extract from the register of organizations and entrepreneurs (it must be fresh and issued no later than 60 days);
- extract from the order on the appointment of a director or other person authorized to represent or issue a power of attorney;
- copy of the power of attorney, if the response is submitted by a representative.
Attached are copies of contracts, acts, account statements, etc. All papers confirming the defendant's arguments are useful. On paper copies marks are placed on their fidelity or compliance with the original. It must be remembered that some facts are only supported by documents, witness testimonies are not used as the main, but an additional source of information.
Features of bankruptcy cases
To understand what a review should be, consider Art. 131 agribusiness and art. 47 Federal Law "On Insolvency". The agro-industrial complex serves as the basis for organizing the process, the profile law sets the features of the procedures, it acts as an additional source of regulation. In this case, the contradiction between these two laws is excluded.
What are the features of the application of Art. 131 agribusiness and 47 of the law "On insolvency"?
Firstly, the deadline for sending a recall is 10 days from the date of receipt of the determination, if the claim is not directed by the debtor. Secondly, the list of persons to whom the debtor is obliged to transmit a response is noted:
- bankruptcy creditor;
- the employee or former employee to whom arrears have arisen;
- an authorized body (most often a lawsuit is filed by the Federal Tax Service);
- representative of the founders;
- to the owner of the debtor's property (the clause is valid in the case of unitary enterprises).
Thirdly, features of the recall structure are provided:
- answer or objection to each claim;
- total debt to creditors (investors, employees, budget, etc.);
- information on open accounts in financial institutions;
- information about the initiation of proceedings against the defendant;
- other information which, in the opinion of the author of the review, is relevant to the case;
- evidence justifying the stated objections.
Either in addition to the recall, or directly in it, motions may be made.
As in other cases, the lack of recall does not deprive the court of the right to consider the case.