Petition to replace the defendant - a sample for civil and arbitration proceedings

In judicial practice, there may be situations with erroneous indication of the data of the person to whom the claims are made. If the plaintiff initially indicated in the appeal the wrong person who should really be held liable, he needs to apply to the court with a petition to replace the inappropriate defendant. Files in .DOC: Form of petition to replace an improper defendantSample petition to replace an improper defendant

What is an improper defendant?

In civil or arbitration proceedings, the citizen filing the claim indicates in his application information about the defendant - the person who, in his opinion, is responsible for the violation of the rights, freedoms or interests of the plaintiff. However, there are situations when, already during the consideration of the case, it turns out that the demands were presented to the wrong person. Accordingly, the person involved in the case, to whom the claims were originally made, is considered an improper defendant .

The reasons for such errors may be different. For example:

• the picture of what happened is difficult to reconstruct;
• the plaintiff became entangled in the system of financial relations;
• legislative provisions are interpreted erroneously.

Most often, such errors are made by ignorant persons who draw up a statement of claim without legal assistance.

Russian legislation provides for a special procedure for such situations - the replacement of an inappropriate defendant. To initiate it, the plaintiff must file a corresponding petition. How to correctly formalize such a requirement will be discussed below.

Application for replacement of the defendant in a civil case

I filed a lawsuit against _________ (full name of the defendant) about _________ (indicate what the claim is about).

In the course of preparing for the consideration of the case, it turned out that the proper defendant in my claim is _________ (full name of the new defendant).

In accordance with Article 41 of the Civil Procedure Code of the Russian Federation, the court, when preparing a case or during its proceedings in a court of first instance, may allow, at the request or with the consent of the plaintiff, the replacement of an inappropriate defendant with an appropriate one. After replacing an improper defendant with a proper one, preparation and consideration of the case are carried out from the very beginning.

Based on the above, guided by Article 41 of the Civil Procedure Code of the Russian Federation,

1. Replace the defendant _________ (full name of the original defendant) with the proper defendant _________ (full name of the new defendant).

Date of application “___”_________ ____ Signature _______

statements:

Application for replacement of the defendant

to “Application to replace the defendant in a civil case”

The neighbor on the 5th floor began independently remodeling the building, an architectural monument, without approval. As a result of this work, several floors were filled.

At the time of the flood, water leaked through my apartment below - at the time of the accident I was absent from the apartment for many days. A neighbor from the lower apartment filed a lawsuit in my name.

How can I change my status to improper defendant in court? All the acts for filling my apartment and the destruction due to this renovation are there.

You need to submit an objection to the claim to the court: https://vseiski.ru/vozrazhenie-po-isku, in which you describe the entire situation and attach evidence of the absence of your guilt. The court will not be able to replace the defendant without a statement from the plaintiff; if it determines that you are not guilty, it will refuse the claim.

I received a default judgment on collection from a fur studio, and an individual entrepreneur works there. How to write an application to replace the defendant? The bailiff refused to initiate enforcement proceedings.

The defendant can be replaced only at your request if a legal succession has occurred. If you incorrectly indicated the name of the defendant and the court made a decision on your claims, it will not be possible to replace the defendant. You need to file a new claim, but first decide who specifically violated your rights.

The plaintiff sued me (the defendant) for reimbursement of the debt for selling me a car in installments (for which no one ever paid the Seller). I didn't buy, but I signed the contract.

Expert opinion

Novikov Igor Timofeevich

Legal consultant with 6 years of experience. Specializes in the field of civil law. Law teacher.

My friend bought it, but at that time he lost his passport. Now he has restored his passport and wants to accept obligations under the contract in my place.

The plaintiff is against it, since I have property that can be foreclosed on. How to change the defendant in this case?

It will not be possible to change the defendant, since the agreement is concluded with you. Then you will collect from your friend the money paid under the agreement.

Please tell me how to draw up a statement of claim to replace the defendant from a company (LLC) to a private individual? I do not have documents confirming that this person was the founder of the company. Only the contract states that this person is such.

Contact your local tax authority and request an extract from the Unified State Register of Legal Entities for this LLC; the extract will indicate the founders. An application to replace the defendant is submitted to the court if the defendant in the claim was incorrectly identified. In your case, additional justification is needed when replacing the defendant from the company to the founder.

Hello! I filed a claim for state registration of the transfer of ownership to the seller's alleged heir. During the trial, information was received from the notary that the heir was another citizen.

Now I am writing an application to replace the defendant. In addition, I need to make a new statement of claim so that it can be sent to the new defendant.

The heading should be changed and the mention of the old defendant should be removed from the text. What else needs to change there? Do I need to refer to the old claim? Should I call the new one “refined”? Do I need to write a case number? Thank you.

In this case, there are no strict requirements for filing applications. You can do it as you wrote. In general, a simple application to replace the defendant is sufficient. Our lawyers usually always do this, write a statement and attach a set of initial documents. There have never been any problems in the courts.

If a party to a lawsuit should not be held accountable for a violation due to the fact that the perpetrator is not present, a petition is drawn up. The defendant can draw up a petition himself (you can get a sample on our website) for consideration by the court. The document is also submitted by the opponent.

This guarantee is established by law; the requirements for the content of the specified document are prescribed, as well as the procedure for its submission. Legal information about the procedure can be found in the Arbitration and Civil Procedure Codes.

There is a difference in the order of consideration between these proceedings. If legal difficulties arise, you can always turn to specialists for help.

At what stage of the proceedings can a petition be submitted?

The corresponding application, which sets out the requirement to bring as a defendant a different citizen or legal entity than was initially declared, is filed before the court of first instance makes a decision on the case. This is stated in paragraph 1 of Art. 41 Code of Civil Procedure of the Russian Federation and paragraph 1 of Art. 47 Arbitration Procedure Code of the Russian Federation .

Such a demand is made both at the stage of preparation for the case and during the proceedings. However, the replacement should not be carried out without the consent of the plaintiff. If a positive response is not received from him (in the form of a petition), the court will be forced to consider the case with the original list of persons involved.

The judge also bears the responsibility for accepting or rejecting the petition.

If the replacement of an inappropriate defendant is made, the process of consideration of the case will begin from the beginning

An important feature: if, after replacing an inappropriate defendant, it turns out that the jurisdiction of the case has changed, the case is transferred to another court in accordance with the current principles of jurisdiction.

It is worth understanding that the statement under discussion makes sense only in relation to the defendants. Third parties participating in the proceedings cannot be replaced.

Consideration by the court of an application to replace the defendant

So, the plaintiff himself can declare an improper defendant. Or a court, but then the plaintiff’s consent must be obtained for a replacement. Therefore, the court itself considers the application in a judicial session. The court formalizes the decision by issuing a reasoned ruling. But more often the result is simply recorded in the protocol.

Expert opinion

Novikov Igor Timofeevich

Legal consultant with 6 years of experience. Specializes in the field of civil law. Law teacher.

If, as a result of filing an application, the jurisdiction changes, the case will still continue to be considered by the original court. This is the rule of Art. 33 Code of Civil Procedure of the Russian Federation. The exception is when the case becomes subject to the jurisdiction of the court of a constituent entity of the Russian Federation or the Supreme Court of the Russian Federation.

After the defendant is replaced, the case begins to be considered from the very beginning. The proper defendant is notified of the hearing.

And the plaintiff is obliged to send documents (the claim and applications, new evidence) to such a defendant. The previous defendant (improper) may be removed from participation in the case, or may participate in it in a different procedural status (third party).

In principle, other persons can also submit an application to replace the defendant, but the final decision depends only on the consent of the plaintiff to such a replacement.

Clarifying questions on the topic

At the court hearing, they decided to replace the defendant, who lives geographically in a different court district. The judge demands URGENTLY to write a new claim to replace the defendant, and I am leaving for a month on business, can I file this application in a month. Are procedural deadlines violated?

If you do not replace the defendant, the court will consider the case against the old defendant and deny your claim.

How to cancel a defendant? It turned out to be redundant.

You need to file a motion with the court to dismiss the claim against this defendant. The court will terminate proceedings in the case regarding the claims against the defendant.

how to exclude yourself from 4 defendants from the writ of execution

The defendant cannot be excluded from the writ of execution. It was necessary to prove the improper choice of the plaintiff at the court hearing to consider the civil case. Since a writ of execution is not always issued after the court decision has entered into force, look into the possibility of an appeal or cassation appeal of the court decision.

in 07, I bought a share in a 3-room apartment converted into 4 hotels. Later, the department sued to remove the redevelopment and won the case. On December 5, 11, I also immediately filed a lawsuit and my purchase and sale transaction was declared invalid on December 19, 11. In 13, I was removed from the owner in the registry office. And the bailiffs are still torturing me. In September 19, I was fined five thousand. In December, leaving the country is restricted, they say we will execute the document, we must fulfill it. a certificate from the registry chamber and the decision that I am not the owner does not help.

Is there really no way out? PLEASE HELP WITH ADVICE. THANK YOU

A court decision that has entered into legal force is binding on all bodies, organizations and citizens. From your question, it is impossible to establish the essence of the court’s decision (what the demands were and what the decision was made).

If we are talking about the collection of funds, then the debtor must execute the decision. If we are talking about bringing the apartment to its original condition, then we can consider the issue of succession at the stage of enforcement proceedings.

A sample application to replace the defendant, taking into account the latest changes in current legislation.

In __________________________ (name of court) Plaintiff: ______________________ (full name, address)

Who applies for the replacement of an improper defendant?

Only the plaintiff can make such a statement to the court. However, the person named by him as a defendant has the right to express disagreement if he does not accept the claims presented.

The plaintiff needs to carefully analyze situations in which it becomes clear that the case involves an inappropriate defendant. If you miss the opportunity to send the appropriate petition, you will have to face a waste of time, as well as legal costs. If a person is named as a defendant who did not cause damage to the plaintiff, the latter will likely be denied protection of his rights.

Legislative basis

Russian legislation prescribes actions aimed at replacing an improper defendant. However, this issue is not clear and unambiguous.

For example, if we take the Arbitration Procedural Code of the Russian Federation, then it allocates a separate article 47 to this issue.

It is stated here that when the defendant is improper, and the plaintiff knows about this and he initiated his replacement, then the progress of the case is reset. It is being reconsidered given current circumstances.

Note! The Code of Civil Procedure of the Russian Federation (Article 41) states the same thing: when the defendant is improper, he is also replaced. For this purpose, a separate petition is written when the initiative comes from the plaintiff. But replacement is also possible at the initiative of the judge.

Both in the APC and in the Code of Civil Procedure the action schemes are the same - when a replacement occurs, the case is considered first. If the plaintiff does not agree with the replacement, consideration of the already filed claim continues.

How the application is processed

If the fact that the claim indicates an improper defendant in the case is revealed by the court, the plaintiff is only required to agree to a replacement. Otherwise, you must apply. Any actions that will be carried out as part of this process are subject to mandatory recording.

An improper defendant, depending on the content of the case, may be removed from the list of interested parties. However, more often he acts in a new role.

Without the consent of the plaintiff, on its own initiative, the court does not have the right to change the defendant.

After the request is granted, the hearing of the case is postponed. This is due to the need to notify the new participant in the case about his role. After the second party is notified, the paperwork will be started again.

Arbitrage practice

The plaintiff has every reason not to agree to replace the responding party. However, the applicant must understand that the court subsequently has the right to refuse to satisfy the claim if it considers the said accused to be inappropriate. Therefore, if changing the opponent is the only way out, it is better for the plaintiff to agree to this procedure.

The judicial authority has the right to involve a second responding party in the proceedings without removing any of the previously designated persons. At the same time, the information that was previously discussed has no relation to the involved citizen. In fact, from the moment a new participant in the process arrives, a new case begins, but the plaintiff does not need to file additional claims.

For the second opponent, his procedural rights as a defendant become relevant from the moment he begins to participate in the process.

Rules for document execution

The law does not regulate the standard to which this petition must be drawn up. It is served in free form. However, it is traditional to include in such applications information that will help identify the applicant and the case under consideration:

1. A cap:
   details of the court to which the application is sent;
2. court address;
3. information about the plaintiff (full name, passport, registration address, contact information);
4. Contents of the document:
   information about the case;
5. data of the participants in the process;
6. essence of the matter;
7. information that the initially named defendant is inappropriate;
8. designation of the proper defendant;
9. clarification of position;
10. link to article 41 Code of Civil Procedure of the Russian Federation or Art. 47 of the Arbitration Procedure Code of the Russian Federation for civil and arbitration claims, respectively;
11. Application information.
12. Lines for the date, signature and full name of the plaintiff.

Attachments can be any documents justifying the selection of the appropriate defendant. Their main task is to confirm the correctness of the decision made. For example, for litigation between an employee and an employer, this could be a copy of the employment agreement.

It is possible to make an oral request to the court to replace the defendant, but a written version is still preferable.

How to make an application

The procedural law has not established a strict form for the petition, therefore the document is drawn up according to general norms of document flow, taking into account legal recommendations.

Sample application

The following sections must be present:

• header of the document - indication of contacts of the court and the applicant;
• title – petition to replace the improper defendant;
• the main part – briefly and substantively expresses the essence of the dispute, the subject of appeal, arguments and evidence;
• the final part is an appeal to the court to replace the party with an appropriate person, indicating their full name.

The applicant's signature and date of preparation completes the document.

Sample petition to court

Grounds for recognition

In cases of filing claims with the judicial authorities, plaintiffs are given the right to independently choose a defendant. Since plaintiffs do not always make the right choice, the law provides for such a procedure as replacing the defendant, which allows an innocent person to be removed from the case and the actual violator to be brought to justice.

Dear readers! The article talks about typical ways to resolve legal issues, but each case is individual. If you want to find out how to solve your particular problem , contact a consultant:

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If the fact of an improper choice of the defendant in the case is revealed, further actions of the judicial authorities may be as follows:

• announcement to the plaintiff of a proposal to replace the defendant;
• satisfaction of the plaintiff’s request to replace the defendant (if the applicant has already applied for this).

Change of defendant in civil proceedings

As stated earlier, the parties are the intended subjects of the disputed legal relationship. However, sometimes, already at the beginning of the trial, the very assumption that the person brought to justice is the subject of a controversial material legal relationship is excluded. In this case, the defendant is found to be inappropriate.

An improper defendant is a defendant in respect of whom the assumption that existed at the time of filing the claim (initiation of the process) about his legal liability for the brought claim is excluded, while maintaining the assumption that the right (interest) of the plaintiff exists and is subject to protection by the arbitration court.

Conditions for replacing a participant in the trial in court

In some cases, one of the participants in the trial (the defendant) is replaced. However, you need to carefully consider how justified such a requirement will be, and whether it will be satisfied by the court.

The decision by which the defendant is replaced is made by the court or the applicant in the case, but only the plaintiff can approve it.

Failure to take the necessary timely actions to change the defendant may lead to a future refusal to satisfy the claims presented if the court independently determines that the person to whom the claims are made is not responsible in a particular case.

Therefore, before making a decision, you should study the issue in the relevant process and the list of conditions that must be met. The initiative to replace a party must be justified and timely.

Attention! Our qualified lawyers will assist you free of charge and around the clock on any issues. Find out more here.

What to pay attention to

You need to know that if the plaintiff refuses to replace the defendant at the suggestion of the court or there is no motion on his part initiating such a replacement, the same claim will be considered.

During the consideration of the application, the court, one way or another, will make a conclusion and consider the fact that the wrong defendant was involved in the case. But since the refusal will already be recorded, the procedure for considering the case will end there.

When a motion is filed to bring the proper party (the defendant) into the case, information about the defendant must be provided. This is necessary for the court to send this party a claim on the case under consideration for review and provide other materials.

Who can apply

The replacement of the defendant in the case is carried out only with the consent of the applicant in the claim or when the plaintiff files a corresponding petition. Since litigation against defendants who cannot be brought to any claim due to their lack of involvement in the subject matter of the dispute is likely to be unsuccessful for the plaintiffs, the greatest interest in replacing the defendant should arise from the applicants in the claim.

If the plaintiff refuses to carry out the replacement procedure in the event of a negative decision on the claim, he will bear all legal costs.

The question of whether the defendant can file a motion for substitution is not clearly reflected in the current regulatory documents. However, defendants may petition to involve co-defendants, which is permitted by the Code of Civil Procedure of the Russian Federation. In other cases, the issue of involving other participants in the process and replacing existing ones is decided by the court and the plaintiff.

Consequences of changing a party to the case

Once the court considers the petition, it issues a separate ruling. If the replacement is approved, then a new defendant is brought into the case.

Important! Since such a step completely changes the situation (the party did not initially participate in the case and has no idea about the evidence and the course of the process), the case begins to be considered from the beginning. Procedural deadlines also begin from the moment a new defendant is brought into the case.

All actions that the old defendant performed during the hearing of the case lose their legal force in relation to the applicant.

If replacing the defendant entails a change in the jurisdiction of the case, then all materials are transferred to the appropriate court for further consideration.

How can I cancel a court decision if I was not notified about it?

The defendant filed an appeal to the Supreme Court to overturn the district court's decision due to the fact that the defendant was not properly notified of the place and time of the trial. Telegrams with notification were sent to the defendant every time a hearing was scheduled, but no notification was received (the addressee does not live, no one opens the door).

I don’t know whether he actually lives there or not (he can say he lives, but he didn’t receive anything and that’s it!) But the defendant knew for sure that a lawsuit had been filed against him. And in addition to all this, the defendant came to court to familiarize himself with the case materials 10 days (April 14) before the scheduled date of the trial (April 23), and was notified on the spot about the upcoming hearing, i.e. It turns out that he has already been notified!? on April 23, the defendant writes a petition to postpone the trial due to his illness (attaches a sick leave certificate).

In the IMV case, judge of the Cheremushkinsky District Court Chursina S.S.

for improper notification was transferred to judge S.S. Chursina. and rejected by the judge: a letter from the judge was attached to the case stating that the plaintiff was notified at the address known to the court.

The requirement to send this type of notice is mandatory for the court. Improper fulfillment of such an obligation may become a reason for a higher court to cancel the court decision (Article 364 of the Civil Procedure Code of the Russian Federation).

Various procedural documents can also be sent by mail with the inscription “judicial notice” to persons participating in the case.

The court may notify the participants of the proceedings not only by registered mail with return receipt requested, but also by telephone message, telegram, fax, etc.

And in order for the result to be the one you need, it’s a good idea to talk to the guardianship representative in advance and convince him of the need for this action (this is for Svetlana too). Everything went fine for me. In the absence of one party, the adversarial principle of non-appearance-failure to appear may be violated. the case may be decided in your favor, BUT the defendant can appeal the court decision, i.e.

k. the summons to the court is not signed, but in between cases they are thrown into his broken mailbox, handed over to neighbors, poked at the door. With the help of a witness The fact is that when considering, say, a cassation appeal against a decision made by the court of first instance, in if the higher court determines that there was improper notification of the defendant.

Such a decision is formalized by issuing a reasoned court ruling.

Find out what: Sample complaint to the prosecutor’s office - how to write correctly

The case begins to be considered first with due notification of the new defendant and sending him all materials on the case.