Are you looking for how to make a statement to the court about succession? Basic information and nuances of drafting the document are presented below. Additional questions and clarifications can be directed to the site’s duty lawyer.
What is succession? This is the replacement of one citizen by another. Or one organization to another. Moreover, as in the process of considering a case. The same goes after a court decision. And even when the bailiff has already initiated enforcement proceedings. And at any stage.
Participants in the case must distinguish between the replacement of an improper party (an application to replace an improper defendant) from succession. In the first case, another person (organization) actually comes to the side of the plaintiff, defendant or third party. And he has this right by force of law. When the improper party is replaced, there is no fact of a dispute about the right between the original participants in the process.
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Application to the court for succession
When can you file a lawsuit?
If a party for some reason withdraws from the legal relationship at the stage of enforcement proceedings, it will additionally be necessary to submit an application to replace the party to the enforcement proceedings directly to the bailiff. When the basis for initiating enforcement proceedings was not a judicial document, but another document, then to formalize the succession at the stage of enforcement proceedings, you will have to contact the body that issued the writ of execution.
If a party is replaced during the consideration of the case, the interested person prepares an application to the court on legal succession. And submits it through the office to set a date for consideration.
The procedure for transferring powers at the stage of enforcement proceedings
Law No. 229 (“On Enforcement Proceedings”) states that if one party drops out for any of the specified reasons (due to death, reorganization, etc.), then the bailiff is obliged to take measures to replace the party that dropped out of the legal relationship. receiver
The following replacement is carried out:
- on the basis of a court decision by which one participant of the individual entrepreneur (under a specific executive document, the issuance of which took place on the basis of a judicial act) is replaced by another;
- based on title documents indicating the exclusion of one of the participants (if the executive document was issued in another institution or by an authorized person).
Grounds for succession in civil cases
Procedural succession is based on substantive rules of law. These are the Civil, Labor Codes, and other laws. If a civil dispute is not directly related to the personality of the party (for example, compensation for moral damage, harm to health are related), then the law allows for succession. The heirs of an individual or a legal entity formed by the accession (merger) of an organization may enter into the consideration of a civil case as one of the parties.
Procedural succession involves the transfer of the rights and obligations of a party or a third party in full; it cannot be partial. When entering into the process, it is important to remember that all previously committed actions of the replaced party are binding on the successor.
Features of the procedure
With the help of an application for procedural succession, the rights of one participant in the proceedings are transferred to third parties, therefore the preparation of such a document is an effective legal instrument.
The procedure can be used at any stage of the proceedings - from the moment the case begins in court until a decision is made on it. A similar scheme operates in both arbitration and civil proceedings.
As a result of procedural succession, in the process of considering a case, a new subject arises, acquiring one of the procedural statuses. He can be a plaintiff, a defendant, a third party. The new subject acquires responsibility, the same list of rights and obligations as his predecessor, and the latter loses them.
How to draw up an application for succession to court
The application is prepared in the name of the court that heard the case and made a decision. Or in whose proceedings the case is currently pending. Not only the legal successor of a party to a civil case can demand to formalize procedural succession. But there is also another side. For example, the defendant dropped out. Then the plaintiff has the right to demand procedural succession.
The text of the application must indicate information about the applicant, including address and telephone number, reasons for the removal of a party to the case (death, reorganization, recognition by the court as deceased, etc.), material grounds for succession (as a rule, these are the norms of the Civil Code of the Russian Federation), a request to replace a party to a civil case . The applicant uses documents confirming family relationships as evidence. Including a court decision to establish the fact of family relations. The applicant also attaches documents confirming the fact of the final (and not temporary) departure of the party to the proceeding.
In 2021, the Constitutional Court considered an interesting case. The father filed a lawsuit to protect property rights, and during the consideration of the case, he donated the property to his son. And the son wanted to enter into the process as a legal successor. At first the courts refused. The Constitutional Court explained that in such claims, succession due to a change of owner is allowed. That is, not only legal norms, but also the essence of the dispute are important for a positive consideration of the issue of succession.
Reasons for appeal
Remember! The circumstances under which procedural succession is possible are described in the previously mentioned articles (Civil Procedure Code and Arbitration Procedure Code):
- If a participant in the process has died. Those rights that the deceased participant in the process had pass to his heirs. It should be noted that obligations such as alimony payments are not subject to inheritance. As for other types of debts, they are distributed among the heirs in accordance with the property share they received by inheritance;
- In the process of reorganization of a legal entity (during separation, merger, etc.). The list of rights and obligations is subject to transfer to the newly formed legal entity. The moment of emergence of a legal entity is the moment of official registration of the changes made;
- When the debt is transferred. Simply put, if the debtor changes. In this case, the creditor has the right to make a claim to a responsible third party instead of the main debtor. Here it is necessary to separate the concepts of transfer of debt and assignment of the right of claim. In the first case, the debt is subject to transfer if the debtor gives his consent to this. The assignment does not provide for such consent, unless the agreement specifies otherwise;
- When assigning the right of claim. For example, when bankruptcy cases are considered. In this case, on the basis of the assignment agreement, a change of creditors occurs. The right to claim the debt is acquired by an interested third party;
- Other cases when it is necessary to replace parties to obligations. The court, the legal successor, or the party withdrawing from the case has the right to initiate procedural succession. A separate petition is being submitted.
Consideration of the application by the court
The court will consider the application for succession at a court hearing. With notification to interested parties. That is why, if enforcement proceedings have already been initiated, be sure to leave information about this in the application. And indicate the bailiff (or at least the department) for notification.
Based on the results of reviewing the documents, the court issues a ruling. Any participant in the case can file a private complaint against it. The legal successor may enter into the process at the stages of appeal, cassation appeal and appeal in the manner of supervision. However, for this purpose, an application to the court for succession is submitted precisely at the first instance (who made the first decision).
Consideration of the appeal on its merits
The submitted application for procedural succession is subject to consideration by the court. In court, the parties are notified of the time and date of the court's consideration of the submitted application.
During the court hearing, the court checks whether the use of legal succession is really possible in a particular case and whether a specific entity can become a legal successor.
After the court considers the issue, a ruling is made, during which the succession is determined or the submitted petition is denied. The decision can be appealed by filing a private complaint.
The Supreme Court determined that procedural succession does not exclude the offset of claims
The Supreme Court issued Determination No. 71-KG17-23, in which it indicated that procedural succession in the case of mutually issued writs of execution does not exclude the offset of claims.
On October 12, 2021, the court issued a writ of execution to N. to collect money from B. in the amount of 130 thousand rubles, and B. - a writ of execution to collect money from N. in the amount of 1 million rubles.
On November 14, 2021, B. and G. entered into an agreement on the assignment of the right of claim, according to which the latter received the rights of claim established by the court decision of October 12
2016 The Agreement provided that the rights of claim are transferred to the assignee to the extent that existed on the date of conclusion of the assignment agreement, including the right to demand the return of the principal debt, payment of interest for the use of other people's funds, expenses for paying the services of a representative and expenses for paying state duties.
The court of first instance granted the application to replace the party in accordance with the procedure of procedural succession. He proceeded from the fact that the right to replace a party in enforcement proceedings with a successor is provided for by law and can be exercised in the absence of legislative or contractual restrictions.
However, the appellate court came to the conclusion that the ruling of the lower court violated N.’s right to set off similar counterclaims within the framework of enforcement proceedings and to reduce the amount of her debt payable in favor of B. In addition, the judicial panel indicated that since B. is not only N.’s claimant, but also her debtor, then B.’s assignment of the right of claim against N. in favor of a third party without simultaneous repayment of the existing debt to N. indicates the bad faith of these actions and obviously violates the latter’s rights to enforce a court decision by partial offset counter homogeneous claims.
Having disagreed with the court's conclusions, G. filed a cassation appeal to the Supreme Court.
The Judicial Collegium for Civil Cases of the Armed Forces of the Russian Federation explained that, on the basis of clause 1, part 2 of the Law on Enforcement Proceedings, the bailiff replaces the party to the enforcement proceeding, including on the basis of title documents confirming the departure of the party to the enforcement proceeding. Since on October 12, 2021, the court found that B. had been issued a writ of execution to collect 1 million rubles from N., then replacing the claimant in enforcement proceedings does not affect the possibility of N. recovering money from B. within the framework of another enforcement proceeding, but the latter's failure to comply with a court decision that has entered into legal force regarding the payment of funds to N. cannot in itself be grounds for refusing to satisfy the application for procedural succession.
The Supreme Court indicated that the appellate court also did not take into account that the possibility of offset upon assignment of a claim is provided for by the provisions of Art. 412 of the Civil Code of the Russian Federation, according to which, in the event of an assignment of a claim, the debtor has the right to set off against the claim of the new creditor his counterclaim against the original creditor.
The court referred to Art. 410 of the Civil Code of the Russian Federation, according to which the obligation is terminated in whole or in part by offsetting a counterclaim of a similar nature, the deadline for which has come or is not specified or is determined by the moment of demand. In cases provided for by law, it is allowed to set off a counterclaim of the same type that has not yet reached its due date. For offset, a statement from one party is sufficient. The Supreme Court indicated that, within the meaning of the above provision of the law, offset is possible only if there is a corresponding statement from one of the parties, meanwhile, when considering this case, the court did not check whether such a statement was available.
Thus, the Supreme Court decided to overturn the decision of the appellate instance and send the case for a new trial.
Commenting on the “AG” ruling of the Supreme Court, lawyer of the Ingoda branch of the Constitutional Court of the Trans-Baikal Territory Vitaly Volozhanin, speaking about the significance of the ruling, noted that the Supreme Court, as the highest court, did not violate the norms of the current legislation and eliminated the judicial error of the appellate court. “The main thing is that the violated rights of participants in civil proceedings were restored, the decision was declared illegal and sent for a new consideration,” he explained.
The expert noted that this definition has practical significance, since it explains the procedure for complying with the rules of law in terms of resolving claims for procedural succession regarding the assignment of a claim (assignment), as well as the application of the provisions of Art. 412 of the Civil Code of the Russian Federation regarding the possibility of offset when assigning a claim.
AB KIAP lawyer Dmitry Kalinichenko also called the Court’s decision quite valuable in a practical sense. “As you know, procedural succession is possible at any stage of civil proceedings, including at the stage of enforcement proceedings. At the same time, the current legislation (Article 388 of the Civil Code of the Russian Federation) provides for a closed list of grounds when the assignment of claims under an obligation is not allowed. It follows from the provisions of the Civil Code that the possibility of assigning a claim does not depend on whether the assigned claim is indisputable, or whether the possibility of its implementation is conditional on the reciprocal fulfillment by the assignor of its obligations to the debtor,” the expert explained.
Dmitry Kalinichenko believes that the Supreme Court of the Russian Federation made two important conclusions indicating that the debtor’s failure to fulfill, prior to the assignment of the right to claim, a court decision that has entered into legal force regarding the payment of funds to the claimant, cannot in itself be a basis for refusing to satisfy the application for procedural succession, and also that in case of assignment of the right of claim, the debtor can set off against the claim of the new creditor his counterclaim against the original creditor. “Thus,” the expert notes, “we can conclude that the assignment of claims can be carried out at any stage of civil proceedings, regardless of the process of exercising the claimant’s right to offset similar counterclaims.”
Lawyer of the Khabarovsk Territory Administration Alexey Gordeychik reported that the appellate court, resolving such an “extraordinary” case, which, in fact, should not have arisen in practice, based on the obvious need to offset counterclaims, even when making a decision in the case, applied the traditional legal approach domestic law enforcer construction - Art. 10, 168 Civil Code of the Russian Federation. “It is through reference to these provisions of the law that disputes are considered in which the victim is faced with a clear abuse of procedural law on the part of the opponent, including in matters related to the withdrawal of claims through assignment agreements,” the lawyer said.
He added that in this regard, the position of the appeal from the point of view of procedural law is more understandable than the arguments of the cassation. “The Supreme Court's reference to the provisions of Art. 412 of the Civil Code of the Russian Federation on the debtor’s right to set off against the claim of a new creditor his counterclaim against the original creditor contradicts the principle of universally binding judicial acts, the legal nature of procedural succession and traditional judicial practice. In accordance with it, after filing a claim against a person who has the right to declare a set-off, such a person can exercise this right only through a counterclaim, which implies the loss of the right to terminate obligations through a unilateral extrajudicial statement of set-off,” explained Alexey Gordeychik.
The lawyer considered that since in this case the set-off based on the results of the consideration of the case was not made, it is doubtful that the right to it could arise again with the subsequent departure of one of the parties to the material relationship. “The analyzed definition itself was adopted in development of the legal position set out in the well-known and extremely controversial from the point of view of the content of the motivational part, Resolution of the Armed Forces of the Russian Federation dated June 15, 2015 No. 307-ES15-1559, adopted on a slightly different body of legal facts that clearly indicated , in contrast to this incident, in favor of the conclusion about the chicane,” the expert said.
Alexey Gordeychik expressed regret that the highest authority in both cases did not ask the question why a judicial act on the recovery of funds, which in its material basis presupposes proper execution as a method of terminating obligations, could be unilaterally changed by the party to the dispute to terminate obligations by offset outside the appropriate judicial control, which in the procedural law corresponds to the provisions of Art. 203 of the Code of Civil Procedure of the Russian Federation on changing the method of execution of a court decision.
Feedback on the statement of claim
Do I need to go to court to change a party in enforcement proceedings? The question was answered over the phone. Hello. I need information about appointments for a replacement. My son is in a colony settlement. Good afternoon! when filing an application to replace a party in Spanish. proceedings by a legal successor (an aunt has died, a certificate of inheritance under a will has been received), is it necessary to attach to the application, in addition to a copy of the certificate of inheritance from a notary, also a death certificate and is it necessary to notify the debtor? The question was answered over the phone. Good afternoon! Please tell me, we received the writ of execution, then the Belgorod Arbitration Court replaced the debtor, who is located in Moscow. We received a ruling on the legal succession. How to correctly write an application to the bailiffs. Based on the ruling? In 2000, a decision was made to reject the claim to invalidate the land deed.
Obligation for the legal successor of all actions performed before his entry into the case
All actions performed by a party before the entry of the legal successor are binding on the latter (Part 2 of Article 44 of the Code of Civil Procedure of the Russian Federation). The entry of a legal successor into the process or refusal to replace it is formalized by a court ruling, against which a private complaint can be filed (Part 3 of Article 44 of the Code of Civil Procedure of the Russian Federation).
Taking into account the fact that by virtue of Part 2 of Article 44 of the Code of Civil Procedure of the Russian Federation, Part 3 of Article 48 of the Code of Arbitration Procedure of the Russian Federation, all actions taken in the process before its entry into the case are mandatory for the successor, a repeated application for the application of the limitation period or a petition for restoration of the limitation period is not required (clause 13 of the Resolution of the Plenum of the Supreme Court of the Russian Federation dated September 29, 2015 N 43 “On some issues related to the application of the norms of the Civil Code of the Russian Federation on the limitation period”).
Petition to replace a party with a legal successor
Accordingly, in procedural succession, which involves further continuation of legal proceedings, all actions previously performed by the predecessor are obligatory for the newly entered legal successor, to the same extent that these actions were obligatory for the latter.
For example, if the claimant is replaced during enforcement proceedings, the bailiff, having received the appropriate determination from the arbitration judge, practically does not change anything in the enforcement proceedings and continues to execute the originally received writ of execution, since succession is not even the basis for issuing a new writ of execution. An application to replace a party with a legal successor is usually drawn up with the aim of maximizing the protection of material interests and rights.
Quite often, this procedure for replacing a party to legal proceedings is used by organizations to optimize accounts receivable.
Petition to replace a party to the process with its legal successor
What should you pay attention to? The response to the statement of claim must be written in accordance with the general requirements of the Code of Civil Procedure of the Russian Federation, Article 131. But in addition to this, the applicant should pay attention to the following key points.
- A reflection of the circumstances on the merits of the case under consideration, that is, those that directly relate to it.
- The request should be presented in restrained official business language, without emotion. A dry presentation of facts and conclusions about them.
- It is advisable to include in the review references to regulatory legal acts related to the circumstances cited in it, and other documents. You can also indicate which norms of law are violated by the claims presented.
- The response does not always contain only those provisions that express disagreement with the position of the plaintiff.
In it, he must indicate objections to all the claims that are presented to him, for each argument contained in the claim. A response to a statement of claim to an arbitration court can be submitted by filling out a special form, which is posted on its official website. All applications can also be submitted electronically, which greatly simplifies the procedure and saves time.
The response is sent to the arbitration court and to all persons participating in this process by means of a registered letter with receipt of receipt. The deadline should provide the opportunity to familiarize yourself with the objection before the start of the court hearing. As for the structure, it remains the same as mentioned above.
