Why do I need a sample application for the cancellation of a court decision in absentia? How to use it correctly? Do I have to pay a fee? What are the features of judicial proceedings at this stage? Is there any way to evade it? And what to do in order not to complicate the situation?
Correspondence proceedings
A sample application for the cancellation of a court decision in absentia is needed if the judicial act was passed in the trial without the participation of the defendant. When does a court have the right to resort to such a procedure?
- The defendant was informed of the hearing.
- The defendant did not ask to postpone the meeting for good reason.
- The defendant did not ask to consider the case without his participation.
- Having multiple defendants requires the non-appearance of them all.
- The plaintiff agrees to the consideration of the case in absentia.
Some nuances
The fact of the message is confirmed by a notice of delivery of the summons to the defendant. The law permits the delivery of documents to other persons living together with the addressee.
The request to postpone the meeting may be related to the need to invite a lawyer, to collect documents due to a late court report. Being in the hospital, the death of a relative is no less justifiable reasons to ask the judge to adjourn the meeting.
By agreeing to the proceedings in his absence, the defendant has the right to send an objection and additional materials refuting the lawsuit.
The judge, offering an absentee review, asks the plaintiff to write a statement so that no one can question the judge’s decision. Although the law allows you to declare the process orally and put the request of the plaintiff in the minutes of the meeting.
Court refusal from absentee review
The court does not have the right to make a decision in absentia if the plaintiff submits an application to change the subject, grounds of action or increase the size of claims.
These three points exclude in absentia review. The judge only has the right to accept the amended or amended statement of claim, send a copy of it and the summons for a new meeting to the defendant and reschedule the meeting.
Is there a difference between the courts
Absentee decisions are made by both district and world courts. All other courts acting as first instance are also entitled to use this procedure.
An application for the annulment of an absentee decision of a district court shall be submitted in the same manner as if it were a peace or other court. The difference is only in the indication of institutions in the statement.
What is the danger of ignoring subpoenas?
The party to the case cannot be forced to attend a trial. Citizens believe that without attending the meeting, they will not lose anything. Such an opinion is dangerous, since the other side thereby loses the right to invite a witness, ask the court to demand evidence, express their opinion and attach the available materials to the case.
The result of participation in a lawsuit may be a denial of a claim or a significant reduction in the number of satisfied claims or their volume (for example, the amount of compensation for damage caused is reduced).
What is the point of using a sample application for the annulment of a court decision in absentia? After all, the judge has the right, but is not obliged to agree with the initiator of the cancellation of the decision.
Why apply?
Citizens, not without reason, believe that the judge will not cancel his own decision. However, one should not miss the attempt to cancel it. In addition, the court of second instance will have to justify the absence of evidence at the hearing and the failure to provide evidence to the court of first instance, otherwise they will not be accepted.
Where to look for help
Lawyers or attorneys assist in writing the application. But, not wanting to contact them for any reason, the participant in the case can use the sample application for canceling the court decision in absentia. One of them is available on our website.
The procedural rules of appeal are clear to the ordinary citizen, but one should take into account which arguments are accepted by the judges in these cases. Compliance with procedural rules alone is not enough.
Writing a statement to the court
The list of requirements of the Civil Procedure Code to the application for cancellation:
- name of the court that made the decision;
- surname and initials of the judge;
- F. I. O. of the applicant;
- circumstances giving rise to the annulment of a judicial act;
- request of the author of the application;
- list of copies of attached documents;
- signature and filing date.
The representative must attach a copy of the power of attorney.
Reasons for the annulment of a judicial act
The law provides the following list of reasons for cancellation:
- respectfulness of the reasons for failure to appear (serious illness, remoteness from the place of proceedings due to a business trip, other circumstances, etc.);
- objective impossibility to inform the court about their circumstances;
- the presence of evidence that would affect the court decision, if it were known about them.
The simultaneous presence of these factors gives reason to consider the requirements justified. If the applicant proves the validity of the absence, but fails to provide the court with essential information, or vice versa, cancellation is not achieved.
In the sample application for the cancellation of the absentee decision, either explanations are made about the features of the application, or a concrete example is proposed, and the reader can make conclusions.
Sometimes lawyers, in presenting their arguments, cite the law in passing, which increases the chances for the reader to understand the provisions of the law.
Subtleties of compilation
A sample application for canceling an absentee decision differs from claims or complaints filed on appeal, cassation or supervisory review.
There is no need to indicate the place of residence, means of communication, information about other participants in the proceedings.
The only request to the court is the annulment of a previously adopted judicial act. Why is that? The court has the right to either cancel the decision or refuse the application. Its change is not within the powers of the court.
In the sample application for the cancellation of the absentee decision, the request is directly formulated: cancel the decision made (name of the court, name and initials of the judge), date of adoption of the judicial act.
Court violations
The judge, wishing to make a decision on the case as soon as possible, can ignore the lack of information about the delivery of summons to the defendant or commit another violation. For example, agree to a change in the requirements, subject and basis of the claim, and at the same meeting make a decision.
In some cases, documents are not sent at all, and a judicial act is issued without any prior notice to the defendant.
If the judge allowed himself such a mistake, it must be indicated in a statement. And the judge will agree to the cancellation, unless, of course, the deadline for submitting the application has expired.
When the case is examined by the second instance with a similar violation, the decision is automatically canceled, the case is reviewed again.
What else do you pay attention to
Copies of the application and documents referred to by the respondent are attached according to the number of participants in the process. One set is included for the judge.
What is more remarkable is the use of a sample application for the annulment of a court decision? A lawsuit or other application in a civil proceeding is paid by a fee. In this case, the applicant is not required to pay anything. His actions are a continuation of the process initiated by the plaintiff. If a judge or a court officer indicates an obligation to pay a fee, such an action is unlawful.
Dates of going to court
An application for the cancellation or revision of the decision in absentia shall be submitted within 7 days from the receipt of the letter from the court. The deadline starts from the next business day after receiving the documents.The date of receipt is set by the postman on the notice sent back to the court.
If the letter was sent without notice, the stamp with the date of receipt of correspondence by the post service unit remains on the envelope. It is on them that one can rely, indicating to the court the actual date of receipt of the letters.
If the deadline is missed
How to write a statement on the cancellation of an absentee decision in this case? The restoration of the seven-day period is not provided. After it expires, the parties to the case have a month to file a complaint with the appellate court.
The month of appeal is counted from the moment the court declares refusal to review the decision in absentia. The complaint is filed in general order.
If the drafter made mistakes
From the office of the paper transferred to the judge. Then he studies it for compliance with the law. If there is not a sufficient number of copies of documents or there are other shortcomings, the application remains motionless and a determination is made. Errors are given time.
Review Procedure
The judge, having accepted the amended statement or having come to the conclusion that the initial statement is ready, sends the summons of the call to the parties to the meeting. Participants have the right to appear or not to come to court. Failure of one or all parties to appear gives the right to resolve the matter without their participation.
The consequences of the refusal have already been written above. How is the cancellation of a court decision in absentia carried out? A definition is made in which at least two points:
- on cancellation of an absentee decision;
- to resume proceedings.
If the defendant does not appear at a new meeting, does not warn of his absence, does not ask the court to consider the case without him, the judge makes a decision only with the participation of the plaintiff. However, the judicial act is passed in the general manner and the defendant no longer has the right to file an application for the cancellation of the decision in absentia. He has only the right to appeal.