An application for the cancellation of an absentee decision, what are its features and the procedure for filing? To do this, consider some provisions of the trial in absentia. The adoption of the decision itself and its cancellation are associated with a number of nuances. Their failure to affect the final result of the case.
Features of the trial
The trial is conducted with the participation of at least two parties. What measures are taken if the defendant is not at the meeting? With the plaintiff, everything is clear: twice in a row he did not come to court on call, and the application remains pending. To be considered, a new lawsuit is being filed.
With the defendants, everything is somewhat different. In absentia proceedings - making a decision solely on the basis of materials provided by the plaintiff. If the defendant previously sent objections, evidence to the court, they are also taken into account. The opinion that ignoring a court session will not make it possible to make a decision is a mistake.
Terms of application of the order:
- the court has evidence that the defendant received notice of the trial;
- the defendant did not report that there were good reasons for the adjournment of the case to be postponed;
- the defendant did not ask the court to adjourn the case;
- the plaintiff agreed to the trial in absentia.
The absence of at least one item from the list deprives the court of the right to make an absentee decision.
What is the danger of cancellation?
The application for the cancellation of the absentee decision protects the defendant, gives him the right to state his position. It is one thing if he agrees with the requirements, and a lawsuit for him is just a way to delay the term for paying money or transferring property. It is another matter if the requirements are too high or not substantiated at all. This happens in relations between citizens and banks. Their claims often do not have a full foundation. A statement to cancel the absentee decision gives a chance to improve the situation.
After the judicial act is passed, it enters into force, and then the bailiffs begin to act. There is no way to refuse payments later.
Cancel or appeal?
Citizens confuse the notion of cancellation and appeal in this case. The application for the cancellation of the court decision in absentia is an attempt to resume the trial. If the judge agrees, the review starts from the very beginning. The annulment of a decision is solely the responsibility of the court that issued it.
An appeal is the direction of an appeal to a higher court to verify the validity and legality of a judicial act.
The result of the application may be either a refusal to cancel or consent to it. Changing a judicial act is not provided by law.
The cancellation procedure is a kind of safety net for the court and citizens.
To whom to direct?
The application is transmitted to the same judge who examined the case. This must be taken into account.
Who is eligible?
The law emphasizes that it is given only to the defendant, the plaintiff has the right to appeal only on appeal. The transition to absentee proceedings is formalized by a court ruling. The plaintiff is not forbidden to file a private complaint against him if he considers his rights violated. Technically, filing it is difficult. The consideration of a case usually ends at the same meeting when a determination is made and a private complaint is meaningless.
Extradition Procedure
The decision is made on a general basis and drawn up according to the same rules. Features are the responsibility of the court to set out the procedure and deadlines for cancellation and appeal.
The defendant is sent a copy of the letter with a notification no later than 3 days after the adoption of the judicial act.Norma, unfortunately, is ignored, and an ordinary letter is sent, and even belatedly. How to justify your position? An envelope is stamped with the date the department received the letter. Referring to this data, the defendant will be able to establish the real date of sending him a letter.
Cancellation Policy
The defendant has 7 days from the date of receipt of the decision to submit an application for its cancellation to the court of first instance. After the documents are received by the judge, a meeting is scheduled to consider the merits. The lack of notified, according to the law, participants in the process does not exclude the adoption of a decision on the application without their participation. Consideration of the application without calling the parties is prohibited and is considered a serious violation.
If for some reason the deadline for filing an application for cancellation is missed, then the countdown for the appeal begins.
When submitting an application for cancellation, the countdown for the appeal starts from the moment the court refuses to review its decision. Failure is made out by definition.
Term Recovery
The law says nothing about restoring the deadline for filing an application with a judge who has passed a judicial act. An application for the cancellation of an absentee decision of a court that has entered into legal force shall be submitted as part of the appeal proceedings. If the deadlines for an appeal have been missed, they will be restored at the request of the submitter if there are good reasons. In this case, a general review procedure applies and no exceptions are provided.
In the application form for the cancellation of an absentee decision of a court that has entered into legal force, these points are noted.
How to write?
A sample application for the cancellation of an absentee decision corresponds to the following structure:
- name of the court that issued the judicial act;
- information about the applicant (full name, organization name, place of residence or location);
- respect for the reasons for absence from the meeting and a reference to their evidence;
- circumstances and evidence that, in his opinion, could influence the opinion of a judge;
- request for cancellation of the decision;
- list of attached documents;
- copies of attached documents;
- date of application and signature of the applicant.
The number of sets of documents is formed according to the number of participants in the process and one for the judge.
The judge has the right to apply the rule of leaving the application without motion to the application filed with violations.
If the representative submits the application, a copy of the power of attorney is attached, and his name and place of residence are indicated in the application.
It is specifically stipulated in the Code of Civil Procedure that the applicant does not pay the state fee.
Using the sample application for the cancellation of the absentee decision, check whether it is suitable for application.
After cancellation
The law stipulates that the absence of the defendant with the proper notification of the meeting after the cancellation of the absentee decision gives the court the right to again issue a judicial act. It is no longer considered in absentia and appealed in general order. Thus, a cancellation application is allowed to be submitted only once.