Request to send a copy of the statement of claim to the defendant. Filing a claim

We are planning to file a claim in arbitration court. We sent a copy of the claim to the defendant by registered mail with return receipt requested. A lot of time has passed, but the notification has not yet returned. What document can be submitted to the arbitration court as evidence of sending a copy of the statement of claim to the defendant instead of a notice?

• Question: No. 726 dated: 2014-06-11.

On the merits of the question asked, we report the following.

In accordance with part 3 of article 125, paragraph 1 of article 126 of the Arbitration Procedural Code of the Russian Federation dated July 24, 2002 No. 95-FZ (hereinafter referred to as the Arbitration Procedure Code of the Russian Federation), the plaintiff is obliged to send to other persons participating in the case copies of the statement of claim and attached to him documents that they do not have, by registered mail with return receipt requested and attach to the statement of claim the corresponding notification of delivery or other documents confirming the sending to other persons participating in the case, copies of the statement of claim and documents attached to it that other persons have, There are no participants in the case.

Within the meaning of paragraph 14 of the resolution of the Plenum of the Supreme Arbitration Court of the Russian Federation dated December 9, 2002 No. 11 “On some issues related to the implementation of the Arbitration Procedural Code of the Russian Federation”, in the absence of notification of delivery, sending a statement of claim to the defendant and the documents attached to it, fact sending the statement of claim and the documents attached to it to the other party is confirmed by other documents in accordance with paragraph 1 of Article 126 of the Arbitration Procedure Code of the Russian Federation.

As these documents, a postal receipt may be attached indicating that a copy of the statement of claim has been sent with acknowledgment of delivery, and if copies of the statement of claim and the documents attached to it are delivered or handed over to the defendant and other persons participating in the case, directly by the plaintiff or by courier, as well as a receipt from the relevant person for receipt of the documents sent (handed) to him, as well as other documents confirming the filing of the statement of claim and the documents attached to it.

Attention! The information provided in the article is current at the time of publication.

When filing a claim, the plaintiff is obliged to send to other persons participating

in the case, copies of the statement of claim and documents attached to it, which

they don't have.

Commentary on Article 103

Consolidation of a legal norm obliging the plaintiff to send to the persons involved

in the case, copies of the statement of claim and documents attached to it, due to

application of the adversarial principle in the arbitration process and reliably guarantees

the right of the defendant and other persons participating in the case to judicial protection. Defendant

must know in advance who is making what demands on him,

on what basis they are stated. This allows the defendant and other persons involved

in the case, thoroughly prepare for the process, think through ways to protect against

claim and your legal position, collect and submit documents to the arbitration court,

refuting the reliability of the evidence presented by the plaintiff, etc.

When should the plaintiff send copies of the specified documents to the persons participating in the case?

in Art. 103 APC documents? The law states that copies of the statement of claim

and the documents attached to it, the plaintiff is obliged to send to other persons participating

in a case, when a claim is brought. Comparing the content of this norm with the rule,

enshrined in clause 2 of Art. 104 of the APC, one should come to the conclusion that the direction

these documents are impossible simultaneously with the filing of a claim or after it

presentation. They are always sent to the persons involved in the case before presentation

claim, and documents confirming their direction must be attached by the plaintiff

to the statement of claim.

Formulated in Art. 103 of the APC rule requires the plaintiff to send copies

the statement of claim and the documents attached to it not only to the defendant, but

and other persons involved in the case. Who specifically, besides the defendant, should

send copies of the above documents? To a third party without independent

claims regarding the subject of the dispute, if the plaintiff in the statement of claim requests arbitration

the court to involve him in the case, as well as interested parties in the cases

on establishing a fact of legal significance.

The rule formulated

in Art. 103 of the APC, is addressed not only to the plaintiff, but also to a third party declaring

independent requirements for the subject of the dispute. It is obliged to send copies of the application

on joining the case as a third party and documents attached to it

not only to the defendant in the main claim and to a third party who does not declare independent

claims on the subject of the dispute, but also to the plaintiff in the main claim.

persons? The plaintiff can send them by registered or valuable mail, by telegraph,

teletype, as well as using other means of communication that provide recording

their shipments, or hands them over against receipt.

Copies of the documents attached to the statement of claim are sent to the defendant,

other persons participating in the case, not always, but only if these

They have no documents.

1. The statement of claim is submitted to the arbitration court in writing. The statement of claim is signed by the plaintiff or his representative.

2. The statement of claim must indicate:

1) the name of the arbitration court to which the statement of claim is filed;

2) the name of the plaintiff, his location; if the plaintiff is a citizen, his place of residence, the date and place of his birth, his place of work or the date and place of his state registration as an individual entrepreneur;

3) the name of the defendant, his location or place of residence;

5) the circumstances on which the claims are based and evidence confirming these circumstances;

6) the price of the claim, if the claim is subject to assessment;

7) calculation of the amount of money collected or disputed;

8) information about the plaintiff’s compliance with the claim or other pre-trial procedure, if it is provided for by federal law or agreement;

9) information about the measures taken by the arbitration court to ensure property interests before filing a claim;

10) list of attached documents.

The application may also contain other information, including telephone numbers, fax numbers, and email addresses, if they are necessary for the correct and timely consideration of the case; it may contain petitions, including petitions to obtain evidence from the defendant or other persons.

3. The plaintiff is obliged to send to other persons participating in the case copies of the statement of claim and the documents attached to it, which they do not have, by registered mail with return receipt requested.

A comment:

Article 125 of the Arbitration Procedure Code of the Russian Federation provides answers to the following questions: who has the right to sign a statement of claim, in what form it is submitted to the arbitration court, what information must be indicated in it, who and to whom is obliged to send copies of the statement of claim and copies attached to it.

The law requires that the statement of claim be drawn up and submitted to the arbitration court in writing. This allows you to clearly record the time and place of filing a claim, determine the compliance of the content of the claim with the law, promptly eliminate errors and shortcomings made by the plaintiff and the arbitration court at the stage of filing a claim, check the legality of the judge’s decision to accept or return the statement of claim, and promptly eliminate the violation of the plaintiff’s right to present claim and reliably guarantee the parties' right to judicial protection.

The statement of claim is usually signed by a manager or individual entrepreneur.

The powers of heads of organizations acting on behalf of organizations within the powers provided for by federal law, other regulatory legal acts or constituent documents to sign a statement of claim are confirmed by documents submitted by them to the court certifying their official position, as well as constituent and other documents (Article 61 of the APC RF).

The current APC granted the right to sign and submit a statement of claim to a representative (legal adviser, lawyer, etc.) who has the appropriate authority. A statement of claim signed by a representative must be accompanied by a power of attorney or other document confirming the authority of the representative to sign the statement of claim.

If a document confirming the authority of the manager or representative to sign it is not attached to the statement of claim, the judge leaves the statement of claim without progress in accordance with Part 1 of Art. 128 APK.

2. In Art. 125 of the APC sets out in detail what the plaintiff must specifically indicate in the statement of claim in any case of litigation:

a) it is possible to correctly indicate the name of the arbitration court that must consider and resolve the given case only if the issue of its jurisdiction has been correctly resolved. An error in this case leads to the indication of the wrong court that should hear a particular case. In addition, the name of the arbitration court must be complete - any abbreviations are not allowed here;

b) in paragraphs 2 and 3 of Part 2 of Art. 125 of the Code, the law obliges the plaintiff to indicate in the statement of claim the names of the plaintiff and the defendant. If the plaintiff intends to file a petition to involve a third party in the case who does not make independent claims regarding the subject of the dispute, then the statement of claim must indicate his name, location, etc.

In cases where a claim is brought by a prosecutor, he must indicate in the statement of claim his official position and last name, first name, patronymic;

c) the plaintiff’s demands are conditioned by the nature of the violation of his subjective rights and arise from the applicable rules of substantive law. Therefore, the law requires the plaintiff to refer to laws and other regulatory legal acts in the application. The plaintiff’s demands against the defendant (the subject of the claim) must be stated clearly and specifically. Upon request for the collection of funds in the statement of claim, the plaintiff is obliged to indicate the total amount of money to be collected with a separate definition of the principal debt, losses, penalties (fines, penalties) and interest. The statement of claim for the award of property must indicate the name of the property to be transferred to the plaintiff, its value and location. If a claim is made obliging the defendant to perform certain actions not related to the collection of funds or the transfer of property, in the statement of claim the plaintiff indicates the person obliged to perform these actions, as well as the place and time of their commission. When filing a claim against several defendants, the plaintiff is obliged to indicate in the statement of claim his claims against each of them; if their liability is joint and several, then the plaintiff’s demands are stated accordingly;

d) before setting out the circumstances that form the basis of the claim, it is necessary to carefully analyze the rules of substantive law (civil, land, financial, etc.) to be applied. It is in these norms that the model of a controversial legal relationship is laid down - the basis that determines the grounds for a claim. When determining the circumstances that are the basis of the claim, substantive legal norms are analyzed from a special angle. In this case, it is very important to identify the range of legal facts, in the presence (absence) of which the consequences provided for by the norm of substantive law to be applied occur. The basis of the claim includes only those legal facts, without clarification of which it is impossible to correctly resolve the case on its merits.

All circumstances on which the plaintiff bases his claims must be clearly and consistently stated by him in the statement of claim.

In support of each circumstance constituting the basis of the claim, the statement of claim must provide the evidence provided for by the Code. They must be relevant and acceptable;

e) the price of the claim is determined by the plaintiff according to the rules set out in Art. 103 of the APC, and must be indicated by it immediately after designating all the persons involved in the case;

f) if a claim is filed for the recovery of a sum of money from the defendant or the amount recovered or to be recovered from the plaintiff is disputed, the statement must contain a justified calculation that is understandable both to the judges and to the persons involved in the case. In practice, the plaintiff often provides only the total amounts, and a detailed calculation is attached to the statement of claim along with other documents listed in Art. 126 APK. In cases where complex and significant calculations have to be made, this practice should be considered justified;

g) information about the plaintiff’s compliance with the claim procedure for resolving the dispute should be reflected in the statement of claim only if this procedure is provided for by federal law for this category of disputes or by agreement;

h) if, before filing a claim, the arbitration court took measures to ensure the property interests of the plaintiff, then the statement of claim must indicate which arbitration court and when the ruling on this issue was made. The court's ruling must be attached to the statement of claim.

The arbitration procedural law grants the plaintiff the right to indicate in the statement of claim other information, including telephone numbers, fax numbers, email addresses, if they are necessary for the correct and timely consideration of the case, petitions may be contained, including petitions to obtain evidence from the defendant or other persons, to call witnesses, to involve third parties in the case who do not make independent claims on the subject of the dispute, to appoint an expert examination, etc.

3. The rule enshrined in Part 3 of Art. 125, the APC obliges the plaintiff to send to other persons participating in the case copies of the statement of claim and the documents attached to it, which they do not have, by registered mail with return receipt requested. The establishment of this obligation of the plaintiff is due to the principle of adversarial action in the arbitration process and reliably guarantees the right of the defendant and other persons participating in the case to judicial protection. The defendant must know in advance who is making what demands on him, and on what basis they are stated. This allows him and other persons involved in the case to thoroughly prepare for the process, think through ways to defend against the claim and their legal position, collect and present to the arbitration court documents refuting the reliability of the evidence presented by the plaintiff, etc.

Copies of those specified in Part 3 of Art. 125 of the APC documents, the plaintiff must send to the persons participating in the case before filing a statement of claim in court, and documents confirming their direction must be attached to the statement of claim.

In accordance with the adversarial principle, the plaintiff is obliged to send copies of the application and documents attached to it not only to the defendant, but also to other persons participating in the case. Specifically, in addition to the defendant, they are sent: to a third party without independent demands on the subject of the dispute, if the plaintiff in the statement of claim asks the arbitration court to involve him in the case, as well as to interested parties in cases of establishing a fact of legal significance.

The rule formulated in Art. 125 of the Arbitration Procedure Code, is addressed not only to the plaintiff, but also to a third party who makes independent claims regarding the subject of the dispute. It is obliged to send copies of the application to join the case as a third party and the documents attached to it not only to the defendant in the main claim and to the third party who does not make independent claims on the subject of the dispute, but also to the plaintiff in the main claim.

Copies of these documents are sent by registered or certified mail, by telegraph, teletype, as well as using other means of communication that ensure recording of their departure, or are handed over against receipt.

Documents attached to the statement of claim

According to Art. 126 of the Arbitration Procedure Code of the Russian Federation, the following are attached to the statement of claim:

1) notification of delivery or other documents confirming the sending to other persons participating in the case, copies of the statement of claim and documents attached to it, which other persons participating in the case do not have;

2) a document confirming the payment of the state duty in the established manner and in the amount or the right to receive a benefit in the payment of the state duty, or a petition for a deferment, installment plan, or a reduction in the amount of the state duty;

3) documents confirming the circumstances on which the plaintiff bases his claims;

4) copies of the certificate of state registration as a legal entity or individual entrepreneur;

5) power of attorney or other documents confirming the authority to sign the statement of claim;

6) copies of the arbitration court ruling on securing property interests before filing a claim;

7) documents confirming the plaintiff’s compliance with the claim or other pre-trial procedure, if it is provided for by federal law or agreement;

8) a draft agreement, if a demand is made to compel the conclusion of an agreement.

Hello. According to the Arbitration Procedure Code of the Russian Federation

Article 126. Documents attached to the statement of claim
1. Attached to the statement of claim:
1) notification of delivery or other documents confirming the sending to other persons participating in the case, copies of the statement of claim and documents attached to it, which other persons participating in the case do not have;

That is, a receipt stating that the claim has been sent to the defendant is sufficient. But it is advisable to have a letter with an inventory of the attachments. So that they don’t say later that they sent something empty.

Article 128. Leaving the statement of claim without progress
1. The arbitration court, having established, when considering the issue of accepting a statement of claim for proceedings, that it was filed in violation of the requirements established by Articles 125 and 126 of this Code, issues a ruling to leave the statement without progress.
2. In the ruling, the arbitration court indicates the grounds for leaving the statement of claim without progress and the period during which the plaintiff must eliminate the circumstances that served as the basis for leaving the statement of claim without progress.
A copy of the ruling on leaving the statement of claim without progress is sent to the plaintiff no later than the next day after the day it is issued.
3. If the circumstances that served as the basis for leaving the statement of claim without progress are eliminated within the period established in the ruling of the arbitration court, the application is considered filed on the day of its initial receipt by the court and is accepted for proceedings by the arbitration court.

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Hello!

acc. from Article 126 of the APC, the following documents are attached to the statement of claim:

notification of delivery or other documents confirming the sending to other persons participating in the case, copies of the statement of claim and documents attached to it, which other persons participating in the case do not have.

acc. from paragraph 14 of the Resolution of the Plenum of the Supreme Arbitration Court of the Russian Federation dated December 9, 2002 N 11 “On some issues related to the implementation of the Arbitration Procedural Code of the Russian Federation”,

In the absence of a notification of delivery, the filing of the statement of claim and the documents attached to it is confirmed by other documents in accordance with paragraph 1 of Article 126 of the Code. This may be a postal receipt indicating that a copy of the statement of claim has been sent with acknowledgment of delivery, and if copies of the statement of claim and documents attached to it are delivered or handed over to the defendant and other persons participating in the case, directly by the plaintiff or by courier, a receipt from the relevant person for receipt documents sent (handed) to him, as well as other documents confirming the filing of the statement of claim and the documents attached to it.

You can simply present a postal receipt indicating that you sent a copy of the statement of claim.

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Good afternoon

The question is: I want to file a claim in the arbitration court. Before this, I must send a copy of the statement of claim to the defendant, but he avoids receiving it and pretends that it does not exist. Accordingly, I receive notifications that the letter of claim has not been served. If I send a statement of claim several times, is this enough to send documents to the court and will they accept my claim without notifying the defendant?
Oleg

In this case there is no reason to worry. Clause 3 of Art. is on you. 125 of the Arbitration Procedure Code of the Russian Federation imposes a corresponding obligation - to send to other persons participating in the case copies of the statement of claim and the documents attached to it, which they do not have, by registered mail with return receipt requested. A statement of claim will be sufficient. A postal receipt is attached to confirm its execution. This will be enough for the court to accept the claim.

In its turn. Art. 123 of the Arbitration Procedure Code of the Russian Federation provides for the following

1. Persons participating in the case and other participants in the arbitration process are considered to have been properly notified if, by the beginning of the court hearing or the commission of a separate procedural action, the arbitration court has information about the receipt by the addressee of a copy of the ruling on accepting the statement of claim or application for proceedings and initiating proceedings in the case sent to him in the manner established by this Code, or other evidence of receipt by persons participating in the case of information about the commenced trial.
2. A citizen is considered to be properly notified if a judicial notice is served on him personally or on an adult living together with this citizen, against a signature on a notice of service or other document to be returned to the arbitration court, indicating the date and time of delivery, as well as the source of information.
3. A judicial notice addressed to a legal entity is served on the person authorized to receive correspondence.
4. Persons participating in the case and other participants in the arbitration process are also considered to have been duly notified by the arbitration court if:
1) the addressee refused to receive a copy of the judicial act and this refusal was recorded by the postal service organization or the arbitration court;
2) despite the postal notification, the addressee did not appear to receive a copy of the judicial act sent by the arbitration court in the prescribed manner, of which the postal service organization notified the arbitration court;
3) a copy of the judicial act was not served due to the absence of the addressee at the specified address, about which the postal service organization notified the arbitration court indicating the source of this information;
4) the court notice was served on the authorized person of the branch or representative office of the legal entity;
5) the court notice was served on the representative of the person participating in the case;
6) there is evidence of delivery or sending of a judicial notice in the manner established by parts 2 and 3 of Article 122 of this Code.
5. If the location or place of residence of the defendant is unknown, proper notification is considered to be sent to the last known location or place of residence of the defendant.

Thus, in your case, the potential defendant is duly notified and the arbitration court is obliged to consider the claim on its merits. Failure to receive a copy of the statement of claim is active, i.e. refusal to receive it, like refusal of a summons, undoubtedly should not entail an obstacle to the protection of the plaintiff’s rights. And this is unacceptable.

How many times should I send him a statement of claim before submitting documents to the arbitration court?
Oleg

It is enough to send once.

In addition, I want to file an application for interim measures, but I don’t know what property the defendant has, especially since he is from out of town, I can of course indicate his current account as an individual entrepreneur, but most likely it will be useless, there will be no money there. how to deal with this?
Oleg

You can demand the seizure of any property of the debtor without specifying or personalizing it. The FSSP should be looking for him.

Art. 92 Arbitration Procedure Code of the Russian Federation

3) the subject of the dispute;


6) the interim measure that the plaintiff requests to take;

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Hello Oleg!

Is it enough to send it once and that’s it, or do you need to send it several times? In addition, I want to file an application for interim measures, but I don’t know what property the defendant has, especially since he is from out of town, I can of course indicate his current account as an individual entrepreneur, but most likely it will be useless, there will be no money there. how to deal with this?
Oleg

Yes, it is enough to submit a statement of claim once. You must have documents (mail receipts) confirming this direction. Regarding interim measures, you must indicate what property you are asking for such measures to be imposed on. Based on Art. 92 of the Arbitration Procedural Code of the Russian Federation:

1. An application for securing a claim may be submitted to the arbitration court simultaneously with the statement of claim or during the proceedings before the adoption of a judicial act, which ends the consideration of the case on the merits. A request to secure a claim may be set out in a statement of claim.
2. The application for securing a claim must indicate:
1) the name of the arbitration court to which the application is submitted;
2) the names of the plaintiff and defendant, their location or place of residence;
3) the subject of the dispute;
4) the amount of property claims;
5) justification of the reason for filing an application to secure the claim;
6) the interim measure that the plaintiff requests to take;
7) list of attached documents.
The application for securing a claim may also indicate countersecurity and other information, including telephone numbers, fax numbers, and email addresses of persons participating in the case.
3. An application for securing a claim is signed by a person participating in the case or his representative.
The application signed by the representative is accompanied by a power of attorney or other document confirming the authority to sign it.
4. If a request to secure a claim is set out in a statement of claim, this request must contain the information provided for in paragraphs 5 and 6 of part 2 of this article.
5. A copy of the statement of claim accepted for consideration by the arbitration court, or a notarized copy of such a statement and a duly certified copy of the agreement on arbitration proceedings, certified by the chairman of the permanent arbitration court, shall be attached to the application of a party to arbitration proceedings to secure a claim.
6. A document confirming its payment is attached to the application for security of a claim, if it is paid by state duty in accordance with this Code.

Thus, in the application you indicate what property you are asking for an interim measure to be imposed on. This can be either cash (account) or other property. As a rule, an individual entrepreneur registers with the tax office at his registration address, you can get an extract from the Unified State Register and find out who owns the apartment; if it is an entrepreneur, then ask for an interim measure to be imposed on it.

In accordance with Art. 91 Arbitration Procedure Code of the Russian Federation:

1. Interim measures may be:
1) seizure of funds (including funds that will go to a bank account) or other property belonging to the defendant and held by him or other persons;
2) prohibiting the defendant and other persons from performing certain actions related to the subject of the dispute;
3) imposing on the defendant the obligation to take certain actions in order to prevent damage and deterioration of the condition of the disputed property;
4) transfer of the disputed property for storage to the plaintiff or another person;
5) suspension of collection under a writ of execution or other document contested by the plaintiff, collection on which is carried out in an indisputable (non-acceptance) manner;
6) suspension of the sale of property in the event of a claim for the release of property from seizure.
The arbitration court may take other interim measures, and several interim measures may be taken simultaneously.
2. Interim measures must be proportionate to the stated requirement.

Good afternoon.

I want to file a claim with the arbitration court. Before this, I must send a copy of the statement of claim to the defendant, but he avoids receiving it and pretends that it does not exist. Accordingly, I receive notifications that the letter of claim has not been served. If I send a statement of claim several times, is this enough to send documents to the court and will they accept my claim without notifying the defendant?

The Arbitration Procedure Code of the Russian Federation entrusts you with the obligation to send a copy of the statement of claim to the defendant, that is, your obligation to hand over the postal item to the Russian Post Office or another organization providing postal services.

By virtue of Part 3 of Art. 54 of the Code of Civil Procedure of the Russian Federation, a legal entity bears the risk of the consequences of failure to receive legally significant messages (Article 165.1) delivered to the address indicated in the unified state register of legal entities, as well as the risk of absence of your body or representative at the specified address I. Messages delivered to the address specified in the unified state register of legal entities are considered received by the legal entity, even if it is not located at the specified address

How many times should I send him a statement of claim before submitting documents to the arbitration court?

To avoid controversial situations in court later, I recommend sending claims by registered mail with return receipt requested.

At the post office you will be given a receipt containing your postal ID number.

The Russian Post website has a service for tracking items.

Make a printout from the website about the movement of the letter and apply for inclusion in the case materials.

Express mail tracking is carried out on the company's website.

In addition, I want to file an application for interim measures, but I don’t know what property the defendant has, especially since he is from out of town, I can of course indicate his current account as an individual entrepreneur, but most likely it will be useless, there will be no money there. how to deal with this.

This question is much more complicated. In general terms, the use of interim measures is possible if one of the following grounds exists: 1) if failure to take these measures may complicate or make impossible the execution of a judicial act, including if the execution of a judicial act is expected outside the Russian Federation; 2) in order to prevent significant damage to the applicant.

The difficult nature of the execution of a judicial act or the impossibility of its execution may be associated with the lack of property of the debtor, or actions taken to reduce the amount of property.
In order to prevent significant damage to the applicant, interim measures may be aimed at maintaining the existing state of relations (status quo) between the parties.
Considering that interim measures are applied subject to justification, the arbitration court recognizes the party’s application for the application of interim measures as justified if there is evidence confirming the presence of at least one of the grounds provided for in Part 2 of Article 90 of the Arbitration Procedure Code of the Russian Federation. The arbitration court has the right to apply interim measures in the presence of both grounds specified in part 2 of Article 90 of the Arbitration Procedure Code of the Russian Federation, if the applicant provides evidence of their validity. (The position is reflected in paragraph 9 of the Resolution of the Plenum of the Supreme Arbitration Court of the Russian Federation dated October 12, 2006 N 55 “On the application of interim measures by arbitration courts” )

In accordance with paragraph 5 of part 2 of Article 92 of the Arbitration Procedure Code of the Russian Federation, the applicant must justify the reasons for applying for interim measures.

The general practice of arbitration courts is that if a request for interim measures is filed without specifying the subject (“to seize all the debtor’s accounts”), a refusal will follow.

The main idea of ​​the refusal determinations is that the seizure of the debtor’s only account will lead to the cessation of business activities, which is unacceptable.

I draw your attention to the fact that, by virtue of Part 4 of Art. 93 of the Arbitration Procedure Code of the Russian Federation, security for a claim cannot be refused if the person applying for security for the claim has provided countersecurity.

In your situation, I recommend conducting an analysis of the debtor’s activities taking into account the cost of the claim. If the amount is large and the debtor has real estate, try to impose interim measures on it. Perhaps the debtor has some property in a warehouse for sale.

This article will discuss the most common mistakes that plaintiffs make when drafting (writing) a statement of claim to the arbitration court.

If your statement of claim contains the errors described below, this will lead to the claim being left without progress or without consideration on the merits.

And so, if you want draw up a statement of claim to the arbitration court that meets the requirements of the law, which guarantees its acceptance by the arbitration court - carefully read this article and apply its recommendations in practice...

1 error - the claim procedure for resolving the dispute is violated or documents confirming its compliance are not attached to the statement of claim.

The claim procedure for resolving a dispute is a procedure provided for by law or contract in accordance with which the plaintiff, i.e. a person whose rights have been violated is obliged, before filing a claim in court, to send to the defendant, i.e. alleged violator of rights, a written proposal (demand, claim) for a voluntary (pre-trial) resolution of the dispute.

The claim procedure for resolving a dispute may be provided for by law or contract.

The law provides for a mandatory claim dispute settlement procedure for the following types of legal relations (demands, statements of claim): demands to amend or terminate a contract (Article 452 of the Civil Code of the Russian Federation); requirements under transportation contracts (Article 797 of the Civil Code of the Russian Federation); demands for collection of tax sanctions, i.e. on the collection of tax arrears and fines (Article 104 of the Tax Code of the Russian Federation).

And so, in practice, this error can be of several types:

• The claim is not directed to the defendant, and in accordance with the law or contract, the claim procedure for resolving the dispute is mandatory. In this case, your statement of claim will be left without progress by the arbitration court.

• The statement of claim is not accompanied by a document confirming the direction of the claim to the defendant. In this case, your statement of claim will also be left without progress by the arbitration court.
• The statement of claim was filed with the arbitration court before the end of the period established for responding to the claim. In this case, your statement of claim will most likely be accepted by the arbitration court, but left without consideration on the merits.

Leaving the statement of claim without consideration means the end of the proceedings in the case, without a court decision. Leaving a claim without consideration does not deprive you of the opportunity to re-apply to the arbitration court with the same claim, but after eliminating previously made errors.

The deadline for sending a response to a claim may be provided for in the claim (proposal, demand) or contract. If the specified period is not in the contract and is not specified in the claim, then the response to the claim must be sent within 30 days from the date of its receipt by the defendant (counterparty). If the claim sent to the defendant (counterparty) is not received by him, then the 30-day period can be counted from the date of receipt of the envelope at the post office of the recipient (defendant, counterparty).

Thus, when preparing a statement of claim, you need to carefully read the requirements of the law in the area of ​​the disputed legal relationship and the contract to see if they contain a condition on the pre-trial (claim) procedure for resolving the dispute. If the claim procedure is mandatory, then the statement of claim to the arbitration court must be accompanied by documents confirming the direction of the claim to the defendant or the lack of response to it. Such documents are a copy of the receipt for sending the letter, a list of attachments in the letter, notification of delivery of a registered letter, a returned envelope, a copy of the telegram, etc.

Important: the law does not provide for the obligation to serve a claim. Your task is to send a claim (proposal, demand) to the defendant (counterparty) and wait for a response to it within a specified period.

The proper address of your defendant (counterparty) is its legal address or the address specified in the contract specifically for receiving postal correspondence.

For more information about the legal consequences of violating the claim procedure for resolving a dispute, read the article “Claim procedure for resolving a dispute and everything connected with it.”

Error 2 - with the statement of claim, documents confirming the sending to the defendant and third parties, copies of the claim and documents attached to it, were not submitted to the arbitration court.

When filing a statement of claim with the arbitration court, the law imposes on you (the plaintiff) the obligation to send to the defendant (counterparty) and third parties copies of the statement of claim and the documents attached to it. These documents should be sent by registered mail with a list of the contents and a return receipt.

It is advisable to attach to the statement of claim the returned notice of delivery of the registered letter to the defendant and a list of the attachments.

If the notice of delivery of the registered letter has not been returned to you, then you can attach to the statement of claim a receipt confirming its sending and a description of the contents in the registered letter.

If a copy of the statement of claim and the documents attached to it were delivered to the defendant by courier, then a receipt from the defendant or a third party for receipt of these documents must be attached to the statement of claim.

3 error - the statement of claim is not accompanied by a receipt for payment of the state duty in the amount established by law.

Underpayment of state duty most often occurs due to an erroneous determination of the nature of the dispute. In this connection, before filing a claim with the arbitration court, it is very important to determine whether your dispute is property or non-property.

And so, property disputes can include statements of claim, the subject of which are material and legal benefits, i.e. cash and non-cash money, securities, property, property rights, results of work and provision of services, protected results of intellectual activity and equivalent means of individualization (intellectual property).

Non-property disputes include disputes regarding intangible benefits, the result of which is the restoration of rights that do not have a value expression. The exception is claims for compensation for moral damage, the basis of which is a violation of personal non-property rights, and monetary funds are used as compensation.

An example of a non-property claim: a claim for the protection of business reputation and recovery of moral damages, etc.

The size of the state fee paid for consideration of the case in arbitration court depends on the nature of the dispute.

The amount of state duty for property disputes is calculated based on the price of the claim, and for non-property disputes it is fixed. If your statement of claim contains property and non-property claims, then the state duty established for claims of a property nature and the state duty established for claims of a non-property nature are paid at the same time.

Important: Article 103 of the Arbitration Procedural Code of the Russian Federation classifies statements of claim for recognition of ownership of property as non-property disputes. In this connection, the amount of the state duty is the same as for claims of a non-property nature.

4 error - documents confirming the circumstances on which the claims are based are not attached.

In fact, we are talking about indicating in the statement of claim the circumstances that served as the basis for its presentation, i.e. a detailed description in the claim of violation of your rights and the submission to the court of evidence confirming this.

Thus, in particular, to the statement of claim for compensation for damage caused by the flood of non-residential premises, it is necessary to attach documents confirming: the fact of damage, the amount of damage, the actions (fault) of the defendant and the causal relationship between the damage that occurred and the actions of the defendant. Such documents are: an inspection report of the premises, an assessment of the cost of the damage caused, a certificate of state registration of ownership of the damaged premises, a lease agreement for non-residential premises or other documents confirming the legality of ownership of the damaged property, etc.

5 error - an extract from the Unified State Register of Legal Entities or the Unified State Register of Individual Entrepreneurs was not provided.

Quite often, plaintiffs either do not attach a statement of claim to the arbitration court at all, or attach an overdue extract from the Unified State Register of Legal Entities or the Unified State Register of Individual Entrepreneurs, in connection with which the statement of claim is subject to leaving by the arbitration court without movement.

Leaving the statement of claim without progress means that the arbitration court has given you time during which it is necessary to correct the shortcomings of the statement of claim.

An extract from the Unified State Register of Legal Entities or the Unified State Register of Individual Entrepreneurs is appropriate evidence confirming the address of the defendant and his legal status as a participant in economic activity.

By attaching to the statement of claim a fresh extract from the Unified State Register of Legal Entities or the Unified State Register of Individual Entrepreneurs, you provide the court with reliable information about the location or place of residence of the defendant, which guarantees proper notification of the statement of claim accepted for proceedings by the arbitration court and upcoming court hearings.

In turn, proper notification of the defendant about the civil proceedings initiated by the arbitration court contributes to the timely consideration of your claim!

An extract from the Unified State Register of Legal Entities or the Unified State Register of Individual Entrepreneurs can be printed on paper from the official website of the registration authority on the Internet and certified by the signature of the plaintiff.

An extract from the Unified State Register of Legal Entities or the Unified State Register of Individual Entrepreneurs is valid for submission to the arbitration court within 30 (thirty) days.

6 error - documents confirming the authority of the person who signed the statement of claim to the arbitration court were not confirmed.

If a claim is filed with an arbitration court on behalf of an organization whose management is carried out by a collegial executive body m, then the person signing the statement of claim must document that he is a member of the management team of the collegial body and has the right to sign on the basis of the relevant internal act.

If a statement of claim to an arbitration court is signed by the general director of an organization whose management is carried out by a sole executive body, then the document confirming his powers is an extract from the unified state register of legal entities.

A statement of claim to the arbitration court can also be signed by a representative of a legal entity or individual entrepreneur, authorized by a power of attorney, which must be attached to the claim.

Important: when preparing a statement of claim and considering it in an arbitration court, it is necessary to remember that, according to Part 2 of Article 9 of the Arbitration Procedural Code of the Russian Federation, persons participating in the case independently bear the risk of the consequences of committing or not committing certain procedural actions.

In this connection, throughout the entire legal process from the preparation of the statement of claim to the end of the enforcement proceedings on it, it is recommended to exercise due diligence and care in order to obtain the result you desire! Or apply for