Article 49 of the Arbitration Procedure Code of the Russian Federation. Change of the basis or subject of the claim, change in the amount of the claim, abandonment of the claim, recognition of the claim, settlement agreement (current version)

The plaintiff has the right to withdraw his statement of claim. Moreover, this can be done both in civil proceedings (for example, in a claim for divorce) and in arbitration (in the case of consideration of economic disputes). Moreover, this document can be revoked in whole or in part. After revocation, the plaintiff no longer has the right to assert the same claims against the same defendant.

Therefore, you should only abandon your claim when it is really necessary. In what cases it is possible to refuse a claim in the arbitration process, how to correctly fill out an application for refusal and what judicial practice shows on this issue is described below in the article.

Waiver of claim in arbitration proceedings

According to Art. 49 of the Arbitration Procedure Code of the Russian Federation, before the arbitration court adopts a judicial act (decision) that ends the hearing of the case, the plaintiff has the right to abandon his claim. Moreover, you can withdraw only some claims or all of them.

After the claim is withdrawn, the judge issues a corresponding Order to terminate the proceedings (Article 151 of the Arbitration Procedure Code of the Russian Federation). Moreover, the defendant has the right to file a complaint against the cancellation of such a court decision to the arbitration court of appeal (Article 188 of the Arbitration Procedure Code of the Russian Federation).

When it can be done, motives

Sometimes it happens that the court has already begun hearings on the case, and the plaintiff suddenly announces the withdrawal of his statement of claim and ends the dispute. Refusal of a claim may be dictated by the following reasons:

1. The defendant and plaintiff managed to resolve the dispute out of court. Moreover, this does not mean that they decided to formalize a settlement agreement. After all, the execution of such an agreement must necessarily be approved by the Determination of the court that has jurisdiction over the arbitration case. As a result, it is not worth withdrawing the claim in this situation.
2. The statement of claim was withdrawn for subsequent re-registration. This is possible if, after filing it, additional documents were presented in the case. claims, previously unknown facts were discovered or new circumstances in the case were presented to the court. In this situation, it would be wiser not to file them further within the framework of the current trial (the judge has the right to refuse), but to file them along with a new claim. However, when replacing an old claim with a new one, you will first need to abandon the first one.
3. The arbitration case was declared unpromising. More often, this is possible due to delays in the consideration of the case, lack of significant evidence, procedural difficulties with the execution of a judicial act (when the defendant does not have any assets) or documentary unsubstantiated claims.

However, in order for the judge to accept the withdrawal, the application to withdraw your claim must indicate all the basic details established for procedural documents.

Grounds and circumstances for clarifying the claim

Clarification of the claim can be expressed in different ways (Article 49 of the Arbitration Procedure Code of the Russian Federation). So, it could be:

• clarification of the essential circumstances of the case (for example, the judge has the right to ask the plaintiff to specify individual requirements);
• adjustment of the stated grounds for filing a claim;
• change in the subject of the claim;
• increase (decrease) in collection amounts. So, if during the hearings on the case the amount of the penalty increased, or, on the contrary, part of the debts was repaid by the defendant.

When clarifying, you cannot immediately change both the legal basis and the subject of the claim (Determination of the Supreme Court of the Russian Federation No. 302-ES18-15735 of October 12, 2021).

The applicant may clarify the claim if the stated grounds remain the same. Thus, the court invited the plaintiff to file an application to clarify the claim and indicate the actual address of the location of the disputed kiosk. Moreover, the basis for filing a claim remains the same: unauthorized occupation of a plot of land (Resolution of the SZO AS No. F07-8336/2017 dated September 4, 2021).

In another court proceeding, the defendant decided to supplement the counterclaim with a claim not related to the subject of the dispute and directed on behalf of another organization. The court did not find legal grounds for accepting such demands of the defendant and considering them in one legal proceeding (Determination of the Leningrad Regional Court No. 33-6385/2015 of December 24, 2015).

How to write an application, sample

To withdraw a claim in arbitration, the plaintiff must fill out an appropriate application for waiver of his claims. In it, according to generally accepted rules for drawing up procedural documents, it is necessary to indicate:

• the name and legal address of the court to which the plaintiff’s petition is sent;
• information about the plaintiff - name and address of the organization (IP) or full name and registration of the individual;
• arbitration case number;
• a link to an article is a legal reason for a revocation (Article 49 of the Arbitration Procedure Code of the Russian Federation);
• information about what the plaintiff is waiving - the entire claim or only individual claims on it (refusal in full, in part);
• name of the defendant (name and address of the company, enterprise, individual entrepreneur or full name and registration of the citizen);
• subject of the arbitration dispute;
• the phrase that the consequences of refusal of the claim established by Art. 151 of the Arbitration Procedure Code of the Russian Federation, explained to the plaintiff;
• request of the plaintiff to accept the refusal of the claim and complete the proceedings in case No. ....”;
• Full name and signature of the plaintiff-citizen or head of the organization, individual entrepreneur.

The application for revocation must indicate the attachments that are sent along with it to the court. So, this may be a power of attorney, which should be in the hands of a representative of the plaintiff organization (IP). Moreover, the power of attorney must contain information that the plaintiff’s representative has powers in this area, that is, the right to revoke (Part 2 of Article 62 of the Arbitration Procedure Code of the Russian Federation).

AIC Russia

Refusal of the APC claim is accepted by the arbitration court exclusively in writing; the paper records such parameters as:

• time and exact address, place of presentation;
• name of the court;
• also the subject of the basis and personal information of the parties to the proceedings;
• price of the submitted document;
• calculation of the recovered property;
• information about prescribed measures;
• list of documentation that is attached to the refusal.

An appeal against the APC gives the injured party the right to make adjustments to the basis and subject of the claim document before the act is adopted. Also, the completed APC form allows the plaintiff, before making a decision on the application, to refuse it or, on the contrary, to recognize it in full or in part.

A Russian appellate court may refuse to satisfy a victim's needs under Article 49 if:

• he abuses a constitutional right or hides facts in an open case;
• the claim was filed at the wrong time or infringes the rights of third parties.

Application methods

An application to waive your claims is submitted to the court that has jurisdiction over the still open arbitration case. The claim can be withdrawn at the court hearing itself or by the same methods in which it was filed in accordance with Art. 125 Arbitration Procedure Code of the Russian Federation:

1. By sending a registered letter with notification by Russian post.
2. By filing an application through the court office.
3. Via the Internet (by filling out an electronic document form on the court’s website or through the “My Arbitrator” system).

If the plaintiff does not want to go to court, care must be taken to ensure that the application to withdraw the claim is received in a timely manner. Only then will it be able to be considered at the court hearing itself. Moreover, sending such an application using the above methods requires different times. A registered letter takes the longest to reach the court.

When is the state fee for refusal refunded?

If the refusal was not approved by the court, the plaintiff has the right to receive back the amount of the state duty that he paid. At the same time, the state fee can also be collected when the defendant satisfied the demands made by the plaintiff before the court accepted the petition for withdrawal, which was received but not scheduled for consideration.

The established state duty is collected exclusively from the defendant by bailiffs.

Expert opinion

Kozlov Nikita Vladimirovich

Practitioner lawyer with 7 years of experience. Specialization: family law. Legal expert.

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It is worth noting that in the practice of arbitration courts, lawyers do not care about the actual reasons for filing a refusal, and in order to return the state fee, they only need to submit a corresponding petition or application to the court, as well as to submit an application for submitting funds to the tax office.

Consequences of withdrawal of a statement of claim from the arbitration court

In accordance with Art. 151 of the Arbitration Procedure Code of the Russian Federation, the return of a statement of claim from the arbitration court can lead to certain consequences. The main ones are shown in the table below.

However, the court does not always accommodate the plaintiff halfway. Thus, a judge may reject the withdrawal of a claim in the following cases (Article 127.1 of the Arbitration Procedure Code of the Russian Federation):

• when the plaintiff abuses his legal right to withdraw the claim and thus hides facts of dishonest (illegal) behavior from his biography. Thus, he may be afraid that during court hearings his financial fraud, forgery of certificates, etc. will be revealed;
• the third party is categorically against the withdrawal by the plaintiff. Even if both the plaintiff and the defendant agree to the early closure of the case, the third party has the right to demand the continuation of court hearings. Moreover, the judge is obliged to accept the third party’s petition;
• if the plaintiff reports the withdrawal of the claim in the supervisory arbitration or cassation court. This can only be done at the stage of hearing the case in the first court (before the relevant court decision is made) or as part of an appeal in a higher court. If the case has moved to the cassation (supervisory) court, it will be impossible to abandon your administrative claim.

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Fasakhovva Elena Alexandrovna

Member of the Russian State Duma Committee on Non-Bank Credit Institutions. Has been involved in bankruptcy proceedings since 2015.

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Also, according to paragraph 5 of Art. 49 of the Arbitration Procedure Code of the Russian Federation, the judge has the right to refuse the plaintiff’s revocation if this infringes on the rights of other persons or violates Russian legislation. As a result, in both cases the judge continues hearings on the case.

Articles:

Procedure for simplified proceedings in arbitration court

Cancellation of a writ of execution and termination of enforcement proceedings

Form for filling out a petition to terminate proceedings

Completed sample application

When filing an appeal to terminate claims, the representative must complete a document in accordance with the general rules of general jurisdiction, namely:

• indicate in the header of the document: the name and exact address of the arbitration court, personal information of the two parties and the number of the proceedings;
• in the descriptive section you should indicate: the name of the document, the scope of waiver of the initial requirements.

Attention! If the victim has decided to waive the initial requirements in part, then he must emphasize in which part the adjustment is being made, referring to the regulations of the legal document Article 49 of the APC.

Also, when choosing a partial amendment of the requirements, the victim is obliged to list the attachments that are submitted with the claim and provide a power of attorney in the event that the documentation is submitted by an authorized person and not by the applicant personally:

• circumstances confirming the need to file a claim;
• the total amount of the application, if it can be assessed;
• calculation of the recovered property from the defendant;
• information about the applicant’s correct compliance with pre-trial proceedings;
• conclusion on the measures taken to satisfy the claims before submitting the document;
• date and resolution.

The document under consideration can be submitted in several versions:

• a written application completed in your own hand;
• a form filled out through the automated platform of the arbitration court.

Important! When filling out an electronic application through the official website, the user of the system is required to sign the application with an enhanced qualified online resolution.

Alternative Item

It is provided in cases where the applicant is given the opportunity by law to choose from several methods of protection. The most illustrative example is Article 475 of the Civil Code. According to the norm, if the seller has not notified the buyer about the defects of the product, the latter has the opportunity to demand:

1. Reducing the cost of goods.
2. Free elimination of defects within a reasonable period.
3. Compensation of costs for independent elimination of deficiencies.

If the seller has committed significant violations of the product quality requirements, the buyer may:

1. Refuse the contract and insist on the return of the amount paid.
2. Demand that the product be replaced with another, but of adequate quality.