Regression in civil law. A recourse claim is a reverse claim in civil law

If a company is forced to pay a fine, compensation or other amount for a third party, it has the right to file a recourse claim against such person. Such claims are filed in connection with obligatory or non-contractual relations.

What claims are considered recourse?

Often a company is forced to pay an administrative fine or pay damages, although it is not at fault for the violation that caused the damage. For example, if a company employee caused an accident. The company may also find itself in a similar situation due to contractual obligations. For whatever reason she is obliged to pay, she, as a creditor (recourse party), acquires the right to file a recourse claim against the debtor (recourse party).

A recourse claim is a claim demanding the return of funds that one person was forced to pay for another. Such claims can be divided into two groups:

• associated with causing harm;
• associated with obligations.

What a recourse claim is and which person has the right to it is disclosed in the Civil Code of the Russian Federation in several articles.

The company has the right to send a claim to the employee by way of recourse

When it comes to causing harm, you need to focus on the rules for filing a recourse claim in the Civil Code of the Russian Federation. It can be presented if:

1. The company compensated for damage caused by its employee during work or by the person who was driving the vehicle. In this case, the company has the right to demand a full refund of the amount, unless there are restrictions in the law.
2. The person who caused the harm compensated for it both for himself and for other harmors. In this case, the plaintiff demands that the defendants pay amounts in proportion to the degree of guilt of each of them. When the degree of participation cannot be determined, the shares are considered equal.
3. The state, subject of the Russian Federation or municipal entity has the right to demand the return of the amount from the judge if he caused harm in the course of his activities, his guilt was established by the court, and the verdict came into force. The same right appears in a number of other cases (Part 3.1 of Article 1081 of the Civil Code of the Russian Federation).

Thus, for legal entities and entrepreneurs, the grounds for filing a recourse claim are the fault of the employee or the presence of other tortfeasors for whom they had to pay.

The company itself may also become a defendant in such a claim. Often such disputes arise in connection with the work of insurance organizations. Read the recommendations of the Lawyer System experts on how to fight off insurer claims.

When a recourse claim is filed in connection with contractual obligations

Several articles of the Civil Code contain provisions on the validity of claims by way of recourse in connection with the fulfillment of certain contractual obligations. These articles cover different situations. Thus, in Part 3 of Article 200 of the Civil Code of the Russian Federation there is a rule on calculating the statute of limitations for such claims. The beginning of this period is considered the moment of fulfillment of the main obligation. Other articles clarify when exactly the recourse party has the right to file a claim:

1. One of the joint debtors fully repaid the debt to the creditor. He receives the right of reverse (recourse) claim against the remaining debtors. He will be refunded the amount paid minus his own share. This rule does not work if something else follows from the relationship between joint and several debtors (Article 325 of the Civil Code of the Russian Federation).
2. The debtor is obliged to notify the guarantor that he has paid the creditor. If the guarantor is not notified in a timely manner and also transfers the money, he has the right to demand repayment not from the creditor, but from the debtor (Article 366 of the Civil Code of the Russian Federation). After this, the debtor himself will have to recover the unjustifiably received funds from the creditor.
3. Between the guarantor and the principal, a claim by way of recourse is allowed if the parties agreed on this in the agreement (Part 2 of Article 379 of the Civil Code of the Russian Federation).
4. The creditor demanded payment from the person who was vicariously liable. This person is obliged to warn the main debtor about this. If it then files a recourse claim against the main debtor, he will have the right to object to it in the same way as to claims from the creditor (Part 3 of Article 399 of the Civil Code of the Russian Federation).

This list of grounds for filing a recourse claim is not exhaustive. For example, such a claim may be filed by a supplier if he received a defective product from a dealer, as a result of which the buyer sought compensation from the supplier.

What does “regression” mean in civil law? Translated from Latin it means “to return back.” The term recourse is found in legal practice more often than in the everyday life of an ordinary citizen. Without knowing what recourse and a recourse claim are, the rules and procedure for its application, in what situations you can use it, much loses its meaning.

Recourse claim

There are always three participants in recourse - the lender, the borrower and the guarantor. This diagram makes it easier to explain the order. Or detail it differently:

• one party is the person demanding repayment of the debt;
• the second party is the person responsible for the incident;
• third party - a person who is not involved in the incident, but suffered losses, often material, due to the fault of a second person.

Recourse is the arising right of a third party to demand in court from a second party to compensate back for his losses, waste, etc.

Drawing up a recourse claim and what it is

What is recourse in the legislation of the Russian Federation

The law of the Russian Federation defines recourse as a claim arising from one debtor who has fulfilled the obligations of another debtor, who has the right to demand compensation from him for his losses. In particular, the practice of applying recourse is found in lending and by their debtors. The grounds for recourse are the consequences regulated by Article 1081 of the Civil Code of the Russian Federation. Basically, recourse is associated with the right to compensation for losses incurred by a third party, for compensation for damage suffered by the perpetrator. For example, an employee can compensate losses to his manager.

A regressive claim is a claim that occurs in reverse order, from a person or from an organization, applied in a civil case, considered by Arbitration or another court. A recourse claim reflects the claim of a given person against the debtor for compensation of expenses incurred by him, other losses, due to the negligence of the debtor himself towards the creditor.

Note! The application of the recourse case is a regressive requirement - one of the types of law that arises in circumstances for compensation of material damage from the perpetrator (debtor) to the injured party. In a lawsuit, the subject of the dispute is determined - the payment that must be reimbursed to the recourse party.

A recourse claim is one of the methods of resolving legal relations that have arisen between the parties, which can only be resolved in court. A regressive claim and its features during registration, filing and consideration are regulated by the provisions of the Civil Code of the Russian Federation. The claim may be sent to the defendant first, and then the lawsuit. In turn, the other party can file a counterclaim.

Sample recourse claim

How does the right of recourse work?

Assets from the insurance organization sold by it personally may serve as a recourse claim. In this case, the size of this claim is limited to the amount of the insured amount itself. These norms are described and established by the legislator in paragraph 1 of Article 1081 of the Civil Code of the Russian Federation.

The insurance company has the right to demand a separate amount of compensation for the costs it has incurred for the entire legal process. The latter must be attached to the statement of claim.

Important! When filing a recourse claim for consideration in court, the issue of paying state fees arises. In relation to the state duty in case of recourse, the non-property nature of the damage incurred arises. In this case, 300 rubles are subject to payment of the state fee. If the recourse is still of a property nature, then the amount to be paid is determined based on the amount required to be returned (the price of the claim).

The main options for applying such a claim

The right of recourse arises for a number of related reasons. Most often, the practice of applying a recourse claim occurs in the following situations:

• When you need to reimburse part of the expenses incurred. If there are several culprits in the situation, but only one person has repaid the entire amount, then by way of recourse he has the right to demand recovery from the remaining culprits for part of the debt and return it to himself.
• In insurance companies OSAGO. After making payment for an insured event, if the terms of the insurance contract were violated by the driver or authorized persons specified in the legal contract, then the insurance company has the right to apply a recourse claim with further recovery of costs.
• In situations between employer and employee. In particular, if the damage was caused due to the fault of another employee, the employer made compensation payments to the victim, then the same employer, by way of recourse, has the right to demand that the costs be returned to him from the person responsible in the situation, i.e., from the employee who provoked the damage.
• Domestic situations (family). When some relatives demand from others to return to them the costs incurred for rent or other utilities, when they did not pay anything.

Important! It is not uncommon for the practice of recourse claims to be found in loan agreements. More precisely, when a loan agreement was concluded between the lender (bank) and the borrower with the participation of a guarantor. If the borrower refused to repay the debt to the creditor, and the guarantor did it instead, then the latter has the right to apply a recourse claim to recover the amount of his funds incurred to pay his debt.

Recourse claim based on an insurance contract

The insurance policy contains information about those persons who have the right to drive the vehicle. If a civilian who was not listed as one of the trustees was allowed to operate a vehicle covered by this MTPL policy, thereby causing damage to the vehicle through his fault, then the insurance company has the right to file a recourse claim.

Note! This requirement will be correct especially when the contract contained indications of persons with limited access to the management of this vehicle. For this purpose, a separate clause is often prescribed in the insurance contract.

The limiting requirements for compulsory motor liability insurance boil down to the following points:

• the circle of persons who are allowed to operate the vehicle is determined;
• a time period is noted that allows you to drive the vehicle.

Simply put, the MTPL insurance policy may display two types of citizens who can drive a vehicle. Some are allowed to operate on a permanent basis at any time, while others are allowed only at certain times, for example, seasonally.

In the event of an insured event, the company cannot refuse payment. But at the same time, if the insured event occurred due to non-compliance with the terms of the contract, the company itself has the right to apply a regressive claim.

Recourse claim for insurance

What to do if the insurer makes a recourse claim

No one is immune from this situation, and it can happen to anyone. In this case, it is worthwhile to assume in advance the pattern of developments and try to reduce the pressure from the insurer, so that later you can try to challenge it in court with weighty arguments.

First you need to find out whether the insurance company has the right to apply a regressive claim. According to insurance rules, before making any payment, guilt must be proven on both sides.

Important! Initially, the insurance company must pay the insured amount to the victim, only after that it can put forward a regressive claim. If there was no payment, then the company has no right to demand anything. This is a direct violation of the law and the insurance contract itself, which can be easily challenged in court.

Sample statement of claim for recourse

Sample statement of claim by way of recourse: https://vseiski.ru/download/o-vzyskanii-v-poryadke-regressa.doc

Amount of claims and statute of limitations

According to the rules of recourse, the amount required for payment cannot exceed that which was provided. The legislator establishes a general statute of limitations for claims in a regressive manner - 3 years (Article 196 of the Civil Code of the Russian Federation). The countdown of the three-year period begins from the moment the obligation is fulfilled. A period of three years is maintained as standard, unless a different time period was noted in the contract itself.

Reinstating the statute of limitations

The statute of limitations can be restored if the reason for missing it is significant. The arbitration court must provide evidence. Obvious reasons for reinstating the statute of limitations can be considered:

• if the citizen stayed in remote places from civilization for a long time;
• at the time the statute of limitations expired, the citizen was undergoing hospital treatment due to a serious illness, was undergoing military service, etc.;
• was on a long business trip for professional direction.

The court will decide to reinstate the process for further review, but, as a rule, it will be extended no longer than six months.

The right to apply a recourse claim is regulated by law, which means that it cannot be applied in every situation. The order of actions that accompanied the recourse claim must be followed. But this requirement also arises only under certain circumstances.

A sample statement of claim for the recovery of sums of money by way of recourse, taking into account recent changes in legislation. Recourse is a claim for recovery made by the person who made the payment to another person through whose fault the losses arose.

Regression occurs for various reasons. For example, when several persons jointly caused harm, and one of them compensated the victim for the harm caused, in this case he has the right to claim by way of recourse against other tortfeasors. Another common case is if the guarantor has paid the debt under the loan agreement for the borrower, he has the right of recourse against the borrower.

Insurance companies often make claims for recovery by way of recourse under compulsory motor liability insurance, as well as from labor relations. By way of recourse, it is possible to recover, for example, rent from other owners or family members of the tenant of the premises. claims by way of recourse are determined by the price of the claim, up to 50,000 rubles. - to justices of the peace, from above - to the district (city) court.

The price of the claim will correspond to the amount of money recovered. A statement of claim for recovery by way of recourse is submitted to the court at the place of residence of the defendant. is paid based on the cost of the claim. Familiarization with the basic rules for drawing up a statement of claim will help you prepare a claim efficiently and competently.

IN __________________________
(name of court)
Plaintiff: ______________________
(full name, address)
Respondent: ___________________
(full name, address)
: ___________________
(full amount from claims)

Statement of claim for recovery by way of recourse

“___”_________ ____ the defendant had obligations to pay a sum of money in the amount of ____ rubles. on the basis of _________ (indicate the grounds for the occurrence of obligations that are fulfilled by the plaintiff: contract, damage, etc.).

The defendant did not fulfill his obligations (performed them improperly), which resulted in a debt in the amount of ____ rubles.

The obligations for the plaintiff were fulfilled by me, which is confirmed by _________ (indicate how the plaintiff’s fulfillment of obligations for the defendant is confirmed and for what amount).

By a letter dated “___”_________ ____, I notified the defendant about the repayment of the debt, offered to repay the debt to me, but the defendant did not react in any way (refused to pay the debt).

In addition, I suffered additional losses in the amount of ____ rubles, which amount to _________ (indicate what the additional losses are made up of).

Based on the above, guided by Article 325 of the Civil Code of the Russian Federation (for cases of joint and several obligations), Article 1081 of the Civil Code of the Russian Federation (for cases of compensation for harm), articles of the Civil Procedure Code of the Russian Federation,

1. To collect by way of recourse from _________ (full name of the defendant) in my favor ____ rubles.
2. To collect from _________ (full name of the defendant) additional expenses in the amount of ____ rubles.

List of documents attached to the application (copies according to the number of persons participating in the case):

1. Copy of the statement of claim
2. Document confirming payment of state duty
3. Documents confirming the occurrence of the main obligation
4. Calculation of claims
5. Documents confirming the repayment of debt by the plaintiff
6. Other evidence confirming the grounds for the claim for recovery by way of recourse

Date of application “___”_________ ____ Signature of the plaintiff _______

1. Definition of the concept of “regression”, “regressive obligation”. Regression example
2. Cases in which the right of recourse does not arise
3. Examples of recourse obligations in the legislation of the Russian Federation
4. Right of recourse of the employer to the employee
5. Recourse and subrogation. Similarities and differences

The right of recourse does not arise if there is a contractual claim and therefore a contractual claim. For example, the buyer, citing that the seller delivered goods of inadequate quality, demands to recover from the latter the overpaid amount (i.e., demands a proportionate reduction in the price). In this case, despite the fact that the buyer demands to return the amount back, no recourse obligation arises. There is no question of recourse in the case where legal relations arise between the parties from causing harm or unjust enrichment.

Cases in which the right of recourse arises are directly provided for by the Civil Code of the Russian Federation and other laws. That is, if the law provides for the obligation to make payments “for another” and this obligation is fulfilled, then demands for the return of amounts paid are recourse. If the payment was made accidentally, by mistake, then the rules on unjust enrichment should be applied (Articles 1102 - 1109 of the Civil Code of the Russian Federation).

Thus, recourse obligations arise in cases where the debtor is charged with a debt previously paid by another person (the debtor under the primary obligation).

Such cases are expressly provided for by law.

3. Examples of recourse obligations in the legislation of the Russian Federation

The right of recourse of a joint and several debtor to other debtors. Unless otherwise follows from the relations between joint and several debtors, the debtor who has fulfilled a joint and several obligation has the right of recourse against the remaining debtors in equal shares minus the share falling on himself (clause 2 of Article 325 of the Civil Code of the Russian Federation).

Right of recourse of the guarantor to the debtor. A debtor who has fulfilled an obligation secured by a surety must notify the guarantor immediately. Otherwise, the guarantor, who in turn has fulfilled his obligation, has the right to recover from the creditor what he received unjustifiably or to make a recourse claim against the debtor. In the latter case, the debtor has the right to recover from the creditor only what was received unjustifiably (clause 2 of Article 366 of the Civil Code of the Russian Federation).

Right of recourse of a person liable subsidiarily to the main debtor. A person bearing subsidiary liability must, before satisfying the claim presented to him by the creditor, warn the principal debtor about this, and if a claim is brought against such a person, involve the principal debtor in participating in the case. Otherwise, the main debtor has the right to raise against the recourse claim of the person liable subsidiarily the objections that he had against the creditor (clause 3 of Article 399 of the Civil Code of the Russian Federation).

Right of recourse of the lessor to the lessee of the vehicle. Responsibility for damage caused to third parties by a rented vehicle, its mechanisms, devices, equipment is borne by the lessor in accordance with the rules provided for in Chapter 59 of the Civil Code of the Russian Federation. He has the right to make a recourse claim against the tenant for reimbursement of amounts paid to third parties if he proves that the damage arose through the fault of the tenant ().

Recourse claims on claims of the drawer, avalist, endorser. A claim by the check holder against all persons obligated by the check (drawer, avalists, endorsers) may be brought within six months from the date of expiration of the period for presenting the check for payment. Recourse claims on claims of obligated persons against each other are extinguished with the expiration of six months from the day when the corresponding obligated person satisfied the claim, or from the day the claim was brought against him (Clause 3 of Article 885 of the Civil Code of the Russian Federation).

Right of recourse to the person who caused the harm. A person who has compensated for damage caused by another person (an employee in the performance of official, official or other labor duties, a person driving a vehicle, etc.) has the right to claim back (recourse) against this person in the amount of compensation paid, if a different amount is not established by law (clause 1 of Article 1081 of the Civil Code of the Russian Federation).

The right of recourse of a notary to the person who temporarily replaced him. A notary engaged in private practice has the right to bring a recourse claim against the person temporarily replacing him in the amount of damage caused through the fault of such person and compensated at the expense of the notary’s personal property (legislation of the Russian Federation on notaries).

4. Right of recourse of the employer to the employee

As a general rule, the person who caused the damage is obliged by way of recourse to compensate the entire amount paid to the victim. However, there are exceptions to the general rule.

For example, if an employee, while performing his job duties, caused harm to third parties, then the employer compensates by virtue of clause 1 of Art. 1068 of the Civil Code of the Russian Federation, harm caused by this employee, but the employee guilty of causing harm bears financial liability in a limited amount, since in accordance with Article 241 of the Labor Code of the Russian Federation, for the damage caused, the employee bears financial liability within the limits of his average monthly earnings, unless otherwise provided by the Code or other federal laws.

Similarities between recourse and subrogation is that in both cases, funds already paid must be returned to the person who paid them within the scope of the payment.

Differences between recourse and subrogation

Subrogation is a special case of a change of persons in an obligation (the insurer receives the right of claim that the insured has against the person responsible for losses compensated as a result of insurance), while a claim by way of recourse is a new obligation. Whenever regression There are two obligations: the main one and the new one (“regressive”), which arises after the fulfillment of the main one. That is, in case of recourse, along with the main obligation, where the victim acts as a creditor, and the causer of harm acts as a debtor, a new (regression) obligation arises, in which the creditor is the person who compensated the losses to the victim instead of their direct causer, and the debtor is person responsible for losses.

To transfer the right to subrogation, no special registration is required, since such a right is granted to the insurer by force of law.

The right to subrogation is provided for by a dispositive rule of law and can be excluded by the terms of the contract, except in cases of intentional harm (clause 1 of Article 965 of the Civil Code of the Russian Federation). The right to recourse is secured by imperative rules of law.

The creditor's change of obligation through subrogation occurs at the time of payment of the insurance compensation. A change of persons in an obligation does not entail a change in the limitation period or the procedure for calculating it. At the same time, in accordance with Part 3 of Art. 200 of the Civil Code of the Russian Federation, the limitation period for recourse obligations begins from the moment of fulfillment of the main obligation.

From the content of Article 1081 of the Civil Code of the Russian Federation it follows that a recourse obligation arises as a result of a tort, i.e. unlawful action (inaction) causing harm to other persons. With subrogation, the insurer acquires the rights of a creditor as a result of its own lawful actions, expressed in the payment of insurance compensation to the insured (beneficiary).

Not every citizen far from jurisprudence knows that there is such a type of claim as regressive, but lawyers, on the contrary, are very familiar with this concept. There are often situations when the court requires payment of compensation for damage caused, but this damage could have been caused by several persons, and the writ of execution was drawn up for one. Then, after collecting the money, the defendant can file a claim against other persons involved in causing the damage to recover this money from them.

We will tell you in this article how to return money paid for damage actually caused by another person.

What type of claim is this?

In judicial practice, recourse claims are widespread. This is due to the fact that it is often much easier to recover from the person responsible than from the specific person who caused the damage. A recourse claim is a demand for the return of money that has already been paid to the victim in the case, but by another person who indirectly or did not fully cause this harm. The claim is brought against the persons who caused the losses.

Let us give an example that will more clearly show when the right to recourse arises. For example, according to a court decision, the employer was obliged to compensate damages for the harm caused by the employee. After payment of compensation, the employer can recover the amount paid from the employee. A similar situation will arise if there was only one defendant in the claim for collection, but in fact the damage was caused by several persons. Then, after paying compensation, the defendant can recover this money from other perpetrators in equal shares or in shares corresponding to the degree of damage caused.

List of grounds for recourse claim

A recourse claim cannot always be filed; for this there must be grounds that coincide with legal requirements, namely:

1. Reimbursement of expenses for compensation of damage that was caused jointly with other persons;
2. Collection of insurance payments under compulsory motor liability insurance from the culprit of the accident by the insurance company that has already paid the insurance premium;
3. Recovery of funds from an employee for damage caused to another person when the employer has paid compensation;
4. Collection of part of the rent that other family members or other persons paid instead of the debtor.

For other reasons, filing a claim by way of recourse will not be possible.

Legislation

All the grounds for filing a recourse claim are written in Article 1081 of the Civil Code of the Russian Federation. This article indicates all the reasons when money paid can be returned by a person who is not actually guilty of causing harm.

Also, special cases are regulated by other articles of the Civil Code, if the claim concerns obligations under securities - Art. 147, bank guarantees – Art. 379, questions regarding subsidies - Article 399. And Article 325 of the Civil Code of the Russian Federation regulates the filing of a claim by a person who has paid the entire amount of the debt that several persons had to pay. In this case, he has the right to recover the entire amount minus his share from other debtors.

Filing a claim

In order to declare a desire to recover the money paid, you will need to file a claim in court by way of recourse. The statement of claim must be drawn up in three copies (to the court, to the defendant and to the plaintiff).

The statement of claim must indicate:

• Full name and information about the applicant;
• Full name and details of the defendant;
• Information about debt obligations that were paid and the reason for their occurrence;
• Deadlines for payment of money, method of transfer;
• List the attached documents that confirm that money has already been paid for the original claim;
• The total amount you are asking to recover from a court decision, which includes other legal costs.

Info

The claim will need to be accompanied by all documents from the previous court, evidence of payment of the debt, a receipt for payment of the state duty and other evidence and documents confirming the information specified in the application.

A statement of claim can be drawn up using the sample presented below.

Sample

It is often difficult for citizens to draw up a statement of claim in court on their own; sometimes they resort to the help of lawyers, but they do not always have additional funds for this. Therefore, in this section we will provide a sample statement of claim in the order of recourse, using which you can draw up your own claim. This sample was compiled by experienced lawyers taking into account the latest changes in the legislation of the Russian Federation.

This sample has a standard form, so it can be used to draw up regression claims on various topics.

In addition to drawing up the claim, it is necessary to collect all the required documents, since if any document is not submitted, then the claim may be refused. If the claim is drawn up according to our sample, and you have submitted all the required documents, rest assured that your claim will be considered by the court. If you are still not sure whether to fill out the sample correctly, you can always contact the site’s lawyers for additional advice.

Where to send?

Before you think about filing a claim, you should make sure that the statute of limitations for recourse has not expired. As of 2017, the statute of limitations for such a case is 3 years from the date of fulfillment of obligations to pay compensation.

Once it has become clear that there is enough time to collect funds, it will be necessary to decide on the court to which the claim will be filed. If the debt does not exceed 50 thousand rubles, then the claim is filed in the magistrate’s court, but if the amount to be recovered is greater, the district court will consider the case.

The state fee for the claim will directly depend on the claims, but in the application you can indicate that you want to collect the state fee from the defendant.

Criminal lawyer. Experience in this direction since 2006.