The return of the statement of claim in a civil proceeding is a decision of a judge in connection with errors made during its submission. The errors listed in the article are both fundamental and formal. Consider each of the available grounds and the procedure for their implementation.
Normative regulation
The return of the statement of claim in the civil process was based on a list that did not change for a long time. The changes introduced in 2016 and 2018 are related to the reform of the court system. I must say that the adjustments are insignificant.
There are no difficulties with the practice of applying the problems; interesting, in the opinion of the judges, cases are given in the reviews of the practice of regional courts. The Supreme Court pays almost no attention to these issues, based on the content of reviews of court practice.
Reasons for the return of the claim
Note that the return of the statement of claim in a civil process is permitted only with the direct indication of the law. It:
- violation of the pre-trial order of the dispute;
- the claimed claim is initially permitted by order;
- violation of the rules of jurisdiction;
- a lawsuit was filed by a person declared legally incompetent;
- the application is not signed or signed by a person who is not authorized to do so;
- a case with the same parties, the basis and subject of the dispute is already pending before the same or another court;
- the plaintiff asked to return the statement.
Failure or violation of pre-trial procedures
How is the return of the statement of claim in the civil process? A copy of the claim or a document confirming the appeal for resolution of the dispute to other instances is attached to the materials of the claim.
The claim is made in accordance with the requirements of the law or at the discretion of the applicant. The claim shall indicate the time period for consideration of the claim or the date before which the addressee must give an answer. Then the defendant will not be able to invoke the fact that the plaintiff filed a lawsuit without any reason.
Pre-trial procedure involves the consideration of the case first in an administrative or other authorized body. Sometimes appeals to such authorities help, more often not. The plaintiff must provide a copy of the response or decision, if it was previously received. The basis for the return of the statement of claim in the civil process is the lack of copies of documents attached to the claim, regardless of whether they exist in reality.
The requirement is considered by order
Nearly all cash collection claims are initially recoverable under writ proceedings. A claim for such a requirement shall be accepted provided that the materials on the decision to refuse to issue an order or its cancellation are attached to the materials.
Violation of the rules of jurisdiction
Jurisdiction determines the rules for the distribution of cases between courts within the framework of one judicial system (civil or arbitration, for example). Most often, the case is considered in court at the place of residence or location of the defendant. The law allows some cases to be disassembled at the place of residence of the plaintiff, in the third version - at the location of the real estate.
In addition to territorial jurisdiction, there is also a division between courts of different levels: for example, between world courts, district courts and regional courts that resolve disputes as a first instance.
How do the GIC standards work here? The return of a statement of claim in a civil proceeding is practiced until the court makes a decision to start the proceedings.If it has already begun, the materials are transferred to an authorized court, which in any case is obliged to consider them on the merits.
Lack of legal capacity
The article refers to people completely deprived of legal capacity by a court decision. If the application is submitted by a person of limited legal capacity, the application shall not be returned. The law does not apply when submitting an application for canceling a decision on incapacity.
Lack of signature
By signature is meant not just the designation of the author of the claim, but the indication of the surname, initials, and hand-made stroke. The court will return the claim if the right to file is not established from the attached documents. For example, the plaintiff is not related to the dispute, property. The power of attorney must indicate the right to file a claim and the right to sign it.
Consideration of a similar dispute
Consideration is refused if an application with the same requirements, with the same reason and with the same persons is already being considered in another court, including the arbitration. It is enough to attach the definition of acceptance to production or information from the information system.
If you previously returned the claim or left it without consideration, but did not open a new one, there is no reason to return.
Claimant's statement
The person who filed the claim has the right to ask the court to return it. The authority is valid until the decision on the opening of production. Usually, from the filing of a claim to entering information into the information system about the beginning of the process, several days pass.
What leads
What are the consequences of returning a lawsuit in a civil proceeding? The proceedings are terminated, and the parties find themselves in a starting position.
The plaintiff has the right to submit a new similar application, eliminating the shortcomings, or after the cessation of the circumstances that caused the return.
The purpose of introducing the institution of return
What is the essence of returning a statement of claim in a civil proceeding? On the one hand, there are violations when filing a lawsuit or application, on the other, there is no reason to refuse a lawsuit that completely prohibits a new appeal with the same application.
Note that the return concerns violations identified before the opening of the proceedings, while the application is in an intermediate state. Thus, some applications with serious violations of procedural law are screened out.
What does the procedure look like
The decision is made by the judge who received the application. After checking it for compliance with the norms of the law, he makes a determination. And the document, referring to the Code of Civil Procedure, explains the reasons for the return of the statement. It is explained: what is the violation of the rules of jurisdiction, pre-trial procedure for resolving disputes and how the circumstances that prevent new treatment are eliminated. Does the plaintiff have the right to request the return of the statement of claim in a civil proceeding? A sample of such a statement is in our review (see above). At the same time, we note that some violations or circumstances identified after the opening of the proceedings are subject to other provisions of the Code of Civil Procedure, in particular, being left without consideration or withholding a claim.
Drafting a statement
It is written as follows:
- name of court;
- Name of plaintiff and defendant, place of residence or location;
- indicate the reasons for the return of the claim;
- references to regulations;
- list of attached documents;
- signature and date.
The proposed scheme is suitable for both the plaintiff and the defendant.
Features of Kazakhstan
Now we will consider the reasons for the return of the statement of claim in the civil process of the Republic of Kazakhstan.
The Code of Procedure is based on its territory, based on the same concept as the Russian one. True, there are differences, including in the list of reasons for returning the claim to the applicant:
- violation of the pre-trial or claim procedure for the settlement of the dispute, and the possibility of settlement still remains;
- Jurisdiction rules violated
- the application was signed by a legally incompetent person;
- the application was signed by a person who does not have authority;
- a similar case with the same parties, grounds and requirements is already pending before the court or arbitration;
- between the parties to the dispute, an agreement has been concluded to refer the dispute to arbitration if it does not violate legal norms;
- A lawsuit has been filed to recognize the right of communal ownership of an immovable property registered for less than 12 months as ownerless;
- the plaintiff asks to return the claim.
Additional grounds are also provided due to violations of the claims:
- failure to comply with the requirements for registration and content of the claim;
- not enough copies of the claim and the documents attached to it, there is no receipt of payment of the fee, there is no power of attorney or other document or documents confirming the right of representation;
- the copy of the investment contract and a copy of the document confirming the conduct of investment activity are not attached to the claim.
The requirements for the ruling and the terms of appeal are the same as in the Russian code. The plaintiff has the right to file a new lawsuit while eliminating violations and existing obstacles.
In Russia, the flaws of the lawsuit lead to being left without a motion, a slightly different wording about the failure to comply with the pre-trial procedure for resolving the dispute.
The Code of Civil Procedure of the Republic also regulates the consideration of economic disputes, which leads to the inclusion of additional specific points in its provisions.
