What is a recovery? How to write a statement, which court to apply to? What issues do citizens face? Compensation legislation is extensive and covers various areas of public life.
Concept of losses
The legislation refers to real damage and loss of profit as a component of losses. Damage - this is the loss that the owner or owner of the property suffered in order to restore it or bring it back to normal condition.
Loss of profits - the anticipated profit that would have been received if the property had not been harmed.
Recovery of damages cannot be confused with moral damage affecting the emotional and mental state of a person, his experiences.
Legislative regulation
- GK - containing the main provisions of the law;
- by-laws issued to calculate the price of damage caused;
- GIC AND AIC - laws governing the settlement of disputes in court of civil and arbitration jurisdiction;
- CAS - regulates the consideration of applications for reimbursement of delays in the consideration of cases in courts;
- regulations governing compensation in various areas (harm from unlawful actions of authorities, actions of minors, owners of equipment, etc.).
- methods of conducting an examination to determine the guilt of persons in the incident (for example, whose fault is the flooding of the premises).
A kind of source of knowledge about the procedure and practice for recovering losses is the explanations of the Plenums and reviews of the practice of the Armed Forces of the Russian Federation. The lower courts periodically conduct their own studies, most often at the regional level and equated with them.
Dispute Resolution Procedure
The law gives the right to resolve the dispute peacefully without a court. This saves both time and money. Commercial organizations and entrepreneurs are obliged to resort to a pre-trial settlement procedure. Without evidence of sending a copy of the claim and the attached materials to the defendant, the lawsuit is not accepted by the court.
A similar procedure is provided for in some civil cases.
Claims for damages through the court are more common; it is possible to agree in rare situations.
Which court to apply to
If at least one of the parties is an ordinary citizen who is not related to commerce, the proceedings will take place in a district or magistrate court. The district court is contacted if the price of the claim or claims reaches more than 50 thousand rubles. If the plaintiff wants to recover a smaller amount, he must turn to the justice of the peace.
If there is no agreement on jurisdiction between the parties, a claim for damages shall be filed with a court located at the location or residence of the defendant. The actual location is taken into account. In the case of legal entities, the binding goes to the address indicated in the registration documents.
Dates of going to court
The right to recover damages is lost if the time allotted by law to file a claim with the court is lost. The general limitation period is 3 years.
The law establishes exceptions, in particular, the employer has the right to exercise the right no later than 12 months later. If the lawsuit is filed later, and the defendant indicated this, the judge has the right to terminate the proceedings on the merits.
The term is restored if it is proved that it was missed for a good reason. With legal entities, this is almost impossible and then recovering damage becomes difficult.
It’s easier for citizens to justify the restoration of deadlines: being in a medical hospital, poor-quality work of mail, prolonged stay in another locality, etc.
Judges in practice immediately return applications or leave them without movement (in a civil proceeding), without waiting for the proceedings, so as not to waste time.
Features of evidence in some cases
Preparations for civil proceedings make in some cases to seek the adoption of a decision of a court or other body in accordance with the norms of the Code of Administrative Offenses or even a sentence in a criminal case. Why? According to the Code of Civil Procedure, evidence in some cases is either judicial acts or decisions of authorized bodies, or documents issued exclusively by authorized bodies. In particular, disability is confirmed by ITU certificates and nothing else.
If damage is caused by deliberate destruction of property, this is proved either by a sentence or court order in accordance with the Code of Criminal Procedure or the Code of Administrative Offenses, respectively.
In the framework of criminal proceedings, a judge has the right to consider a civil suit. If he, having passed a sentence, refused a civil lawsuit, the right remains to apply to the court with a new lawsuit.
The practice of flooding premises was not fully established, the fact of which is formally proved by a resolution of the housing inspectorate. In a number of cases, no one requires administrative materials as a mandatory means of proof. And judges are content with acts drawn up by management companies.
Before filing a claim for damages, you need to find out whether to seek preliminary administrative or criminal liability of the defendant. Otherwise, the court will reject the statement of claim for formal reasons due to a lack of appropriate evidence.
The difficulty is that such documents, especially in the area of administrative responsibility, are either not compiled properly or the police and other authorities refuse to draw them up in principle.
For example, instead of an administrative protocol, a letter is written stating that an explanatory conversation was held with that person.
How to make a statement
How to write a claim for damages?
- indicate in the header the application the name of the court or the number of the justice of the peace;
- information about the plaintiff (full name, name of the organization, address of the place where he lives or is located);
- information about the defendant (full name, name of organization, place of residence or location);
- information about third parties - all those whose rights and obligations are, in one way or another, affected by a court decision (organization that administers residential flooding cases);
- circumstances of the case, references to legislation;
- claim requirements (request to recover a certain amount);
- list of attached documents;
- Signature and date of filing the application with the court or sending by letter in the mail.
Some nuances of dispute resolution
The case necessarily establishes a causal relationship between the actions of the defendant and the harm caused. For this purpose, an examination may be appointed. For example, construction and technical research is used in flooding cases.
In cases of accident, the establishment of a connection between the actions of the defendant and harm is provided in the order of bringing to administrative responsibility.
In cases where it is a question of damage caused by an accident, the difficulties lie in assessing the damage caused. In general, this problem is in all disputes of the described category. With cars, it stands out most vividly.
Plaintiffs attach appraisal reports to the materials. Judges prefer, if the second party does not recognize the amount of damage, to appoint a forensic examination.
By the way, this happens with technical examinations aimed at identifying a causal relationship.
The reason is that while the court orders an examination, a considerable time will pass and there will be no sense in it. So, on the basis of the same materials, two examinations are carried out.
Judicial damage
Recovery of losses from the court is carried out in two versions:
- a person was illegally prosecuted;
- there was an unreasonable delay in the investigation of the criminal case and its consideration by the court, as well as the trial (in all categories of cases).
In the first case, compensation is paid based on the calculation of lost earnings and other factors. Such cases are being considered in accordance with the norms of the Code of Criminal Procedure and Code of Civil Procedure.
The second case concerns those who have been waiting for the trial for an excessively long time, its completion, trying to achieve the initiation of a criminal case - the plaintiffs, the victims, etc.
A separate category is citizens who suffered from an unreasonable delay in the enforcement of a court decision.
Claims regarding the delay in the proceedings and the execution of a judicial act shall be filed in the Armed Forces of the Russian Federation in the manner described in CAS. The application is sent directly to the court, whence the judge appointed to consider the case, the materials of the case, which served as the reason for the application for recovery, are claimed.
Who is charged with? Formally, from the state budget, but in practice they are paid by guilty judges who are not interested in sanctions by the authorities.