The person in whose interests the statement of claim is filed is called the plaintiff in civil proceedings.
Along with the defendant, he is the main protagonist. It is the plaintiff (on his behalf) who initiates an appeal to the court, determines the essence and size of his claims, and chooses ways to protect his rights. He seeks protection in court because he believes that his rights have been violated or challenged by someone.
Civil procedural legislation distinguishes between two forms of plaintiff’s participation in civil proceedings. This is a person who personally goes to court to protect his rights. Or a person in whose interests the case was initiated at the request of the prosecutor and other persons who have the right to go to court for the protection of the rights, freedoms and legally protected interests of other persons.
Plaintiff
A plaintiff is a person who has a civil or legal status, who has applied to the court to resolve a controversial situation or a complaint against another person related to the violation of his personal rights and interests. The plaintiff must file a statement of claim with the court in the prescribed form, and the court, in turn, must set a date for the trial and involve the defendant. He must find out who the plaintiff is and who the defendant is. A group of people may file a class action lawsuit as a plaintiff.
Lawsuit
A complaint is a form of formal request or statement, handwritten or computer-typed, that is submitted by the plaintiff to the court for review. In the claim of the plaintiff against the defendant, the demanding party describes the situation, indicates its conditions and demands that the defendant, who violated his interests, be called to pay. After considering the claim, the court must inform the plaintiff in writing about the stage of initiation of the case, also indicate the start date of the process and invite the defendant to appear in court by means of a subpoena. A claim can be filed by one person or a group of persons who have the same grounds for this and have common rights and obligations.
The plaintiff has the right to change the basis or subject of the claim, change the amount of the claim. The plaintiff may withdraw from the filed claim. The defendant has the right to admit and accept the claim. The parties have the right to conclude an agreement between the plaintiff and the defendant amicably, thereby ending the proceedings.
If the rights of one of the parties are violated or there are illegal actions, then the court may deny the plaintiff his right to abandon the claim, the defendant to admit the claim or end the case amicably.
If there are changes in the subject or basis of the claim, or if the amount of claims increases, the time frame for consideration of the case is counted anew.
Change in the amount of material compensation
The plaintiff, in accordance with the existing law, has every right not only to increase, but also to reduce previously presented claims.
This request can be made either orally or in writing and submitted to the court. This decision may be made for a number of reasons. In particular, if during the meeting it turns out that the amount of the claim is much less than the actual material damage caused. Reducing claims is a very rare occurrence and, as a rule, is due to the understanding that a smaller amount of monetary compensation is much better than no compensation at all.
The plaintiff is a person who has become a victim of a crime that has resulted in moral, property or physical damage.
Trial
A trial is a process that takes place in a courtroom and involves three parties: the court, the plaintiff and the defendant. The court process resolves the dispute between opposing parties. The court considers the plaintiff’s claim, and the defendant must either accept this claim or prove his non-involvement. The plaintiff must present all available evidence of the defendant's guilt before him. The latter, in turn, must provide evidence of his innocence. Whose arguments will outweigh in this fight, the truth will be on the other side. Final verdicts are made by the court, whose representative is the judge. If the proceedings are too complex, either party may seek the assistance of a lawyer.
Requirements for the plaintiff and defendant
Everyone who represents their interests and rights in court as a plaintiff or defendant must be an adult. If one or the other is under 18 years of age at the time of the trial, he must appear in court with his legal representatives. The judge cannot blindly trust the claims of the plaintiff and defendant. He can understand who these people are only by personally communicating with them during the proceedings. The judge may question the minor in court, but in the presence of his legal guardians. A minor from 14 to 18 years of age has the right to assert his rights, but in the presence of his guardians. Until the age of 14, the interests of a minor must be protected by his parents, but if necessary, the court can interrogate the minor himself.
Both parties to the proceedings must conscientiously perform their duties in court. Do not file groundless claims against the other party, do not resist during the consideration of the case. If one of the parties violates the rules specified in Art. 99 of the Code of Civil Procedure of the Russian Federation, then the court has the full right to recover compensation from the violator for the time spent in favor of the other party.
Obligations of the parties before the court:
- Attend the hearing at the appointed time. If due to unforeseen circumstances it is not possible to appear in court, this must be reported.
- When filing a statement of claim, the plaintiff is required to pay a state fee. The state duty can be in the approved amount, as a percentage of the amount of the claim, or in a combined amount. State duty is payment for the services of civil servants, and costs are the costs of lawyers and experts.
- The parties are obliged to comply with the court's requirements within the specified period.
- Both parties are required to pay the costs associated with hiring human rights defenders or independent expertise.
If the court orders the responding party to pay all costs of litigation incurred by the plaintiff, it must comply with this requirement in the specified amount and within the specified time.
Settlement agreement
The conclusion of a settlement agreement can be carried out at any stage of legal proceedings. In particular, in the process of reviewing a court decision.
The meaning of a settlement agreement is that the parties decide to waive part of their claims. But the right of the parties to a lawsuit to reconcile in this way is not considered absolute. The court does not have the right to accept the plaintiff’s refusal of the stated claim or accept a settlement agreement if this is contrary to the law or infringes on the legitimate interests and rights of other persons.
Rights of the plaintiff and defendant
Any citizen of the Russian Federation has the right to defend his honor, rights and interests. If the legal rights of one person are violated by the actions or inaction of another, then the offended party has the right to file a complaint with the court with a statement of claim. If the interests of one of the parties are violated, she can go to court and perform all the necessary actions specified in the civil procedural code in order to act on the basis of the law and have a greater chance of winning.
All participants in the trial have the right to study materials on the case, make notes from them, copies, present their evidence and be present during their study. Opponents in court can ask questions of witnesses, experts or specialists, make demands for evidence, and object to the arguments of the other side. Both parties have the right to receive notices and court decisions from the court, as well as send their documents electronically. Either party can appeal the court's decisions.
The plaintiff has the right to refuse the claim and terminate the case, the defendant has the right to admit the claim. Both parties can bring in their own representative for support.
The plaintiff and the defendant (you already know who they are) have equal rights and bear equal responsibilities. Therefore, they have a legal guarantee to receive equal means and opportunities when defending their truth in court.
Participants in a legal dispute have the right to submit all documents in paper or electronic form with an electronic signature.
CHANGE IN THE SUBJECT AND BASIS OF THE CLAIM: SYSTEM ERRORS OF THE PLAINTIFF
lawyer Olenskaya Inessa Vitalievna, August 12, 2016 Phone: +375297543322
Minsk Regional Bar Association
The subject of litigation in civil or economic proceedings is a dispute about subjective law.
The plaintiff asks the court to protect his right of claim against the defendant, the defendant disputes the claims with his objections, the court, having considered the case, makes a decision.
However, during the consideration of the case, the Plaintiff may need to change the initially stated claims by replacing the basis or subject of the claim, increasing or reducing the claims. The reason for this may be either the Plaintiff’s ignorance of certain circumstances of the dispute, or errors made by him in preparing the statement of claim.
Any changes to claims in a process that has already begun are permitted under certain conditions established by procedural law. To do this, you need to clearly understand whether this is possible within the framework of an already ongoing process or whether a new claim needs to be filed.
“The individualization of any claim as a means of protecting a right or an interest protected by law is determined by its basis and subject. With a change in any of these elements the claim changes; he loses his identity." (I.M. Pyatiletov. Civil process: Textbook / Edited by M.S. Shakaryan. - M.: Legal lit., 1993. - p. 243).
According to Art. 63 Code of Criminal Procedure of the Republic of Belarus, Art. 61 of the Code of Civil Procedure of the Republic of Belarus, the plaintiff has the right, when considering the case in the court of first instance, to submit a written application to change the grounds or subject of the claim. This alternative aims to prevent one claim from being replaced by another that protects an entirely different interest.
In paragraph 19. Resolution of the Plenum of the Supreme Economic Court of the Republic of Belarus dated May 27, 2011 No. 6 “On some issues of consideration of cases in the economic court of first instance”, attention is drawn to the fact that a simultaneous change in the basis and subject of the claim (application), that is, the replacement of one claim (statement) to others, COD is not allowed.
Changing the cause of action (application) means changing the circumstances on which the plaintiff (applicant) bases his claim against the defendant (interested person). A change in the cause of action occurs if the claim is justified by a violation of obligations under a specific agreement, but later the plaintiff refers to the emergence of obligations from another agreement, transaction or from actions that, although not provided for by law, are due to the basic principles and meaning of civil law give rise to civil rights and obligations.
Does not entail a change in the basis of the claim, for example, the introduction during the consideration of the case of additional arguments to substantiate the stated requirements; changes by the plaintiff in the legal basis of their claims.
Changing the subject of the claim (application) means changing the substantive legal claim of the plaintiff (applicant) to the defendant (interested person).
Does not entail a change in the subject of the claim, for example, the replacement of an inappropriate defendant, if the substantive claim asserted by the plaintiff remains unchanged; reduction, increase in the amount of claims.
The subject of the claim is the subjective right of the Plaintiff, those rights and obligations, that legal relationship, the question of the existence of which the court must consider in order to make its decision about them. The subject of the claim is what the plaintiff seeks protection from the court: what he asks him to award, recognize or change (transform). The subject of the claim may be a legally protected interest, as well as the legal relationship as a whole.
The plaintiff may demand from the court the forced exercise of his right to the defendant (return property, pay debt); may ask the court to establish, change or terminate the material legal relationship between him and the defendant (terminate the contract, invalidate the transaction).
The subject of the claim should be distinguished from the object of the controversial civil legal relationship, the so-called material object of the claim, which is included in the subject of the claim as its component (amount of money, the thing claimed, property retained, etc.).
The basis of the claim is the circumstances with which the plaintiff connects his substantive legal claim or the legal relationship as a whole, which constitutes the subject of the claim. Thus, the basis of the claim can be: property rights, transactions, contracts, facts of violation of rights, facts of harm, etc.
Changing the subject of the claim is the replacement of the originally specified subject with another, the basis of which is the circumstances originally cited by the plaintiff.
If the plaintiff has alternative claims, any of them may be replaced by another. For example, in case of violation of his rights, a consumer may, at his choice, demand: termination of the contract, replacement of the item, reduction of the purchase price of the item, elimination of defects. This will be a change in the subject of the claim.
In practice, there is no clear and unambiguous approach to understanding the subject and basis of the claim. There is a general formal definition of these concepts, but attempts to specify them in real-life situations most often do not occur without contradictions.
Arbitrage practice
- Economic Court of Minsk / “The impossibility of fulfilling a contract imposes on the guilty party an obligation to compensate for losses” (R.A. Kolbasov) (as of 09/18/2015) Judicial practice.
A private trade unitary enterprise filed a lawsuit against the limited liability company to compel the fulfillment of an obligation and to recover 99,291,840 rubles. penalties.
By ruling dated 05/04/2015, due to the absence of non-residential premises with a total area of 39.3 sq.m. as the subject of the stated demands, at the plaintiff’s request, the court changed the subject of the stated demands and accepted for consideration the plaintiff’s demands for recovery from the defendant of 1598501017 rubles. damages for failure to fulfill obligations under the contract dated December 24, 2013.
The defendant asked the court to refuse the Plaintiff to accept the amended demands and the justification indicated that from the concepts of the subject and basis of the claim it follows that if the substantive legal requirement to compel the fulfillment of an obligation and the collection of penalties on the basis of Articles 291,295,297, 311 of the Civil Code of the Republic of Belarus is replaced by a requirement to collect losses on the basis of Articles 14, 386 of the Civil Code of the Republic of Belarus and other reasons for this change are given, then there is a change in the subject and basis of the claim. The defendant's arguments that the plaintiff changed both the subject and the basis of the stated claims were not taken into account by the court.
In the case under consideration, the court noted that the plaintiff changed only the subject of the claim - a substantive claim, conditioned, as in the original case, by the failure to fulfill contractual obligations, i.e. based on the circumstances of the defendant’s failure to fulfill the agreement on shared construction of non-residential premises dated December 24, 2013. The plaintiff’s references in the clarified demands to other norms of legislation indicate only a clarification of the legal basis of the demands, but do not affect the factual grounds.
- Economic Court of the Minsk Region
A private trade unitary enterprise filed a lawsuit against the Closed Joint Stock Company to terminate the investment agreement and collect 215,655,500 of the principal amount, as well as interest for the use of other people's funds and penalties.
During the consideration of the case, the Plaintiff filed an application to change the subject of the claim - to recover damages for failure to fulfill obligations under the contract, while the Plaintiff decided not to terminate the contract, but to renounce it due to the lack of non-residential premises. The court refused to accept for consideration the plaintiff’s amended claims to recover damages from the defendant for failure to fulfill an obligation, since it considered that in this case both the subject and the basis of the stated claims had been changed.
An example from judicial practice. Article “Some aspects of reclaiming property from someone else’s illegal possession using examples from the judicial practice of economic courts” (M.Ch.Posled) (as of 03/01/2016)
The subject of consideration of the dispute in the case was the substantive legal claim of the plaintiff - closed joint-stock company "P" (hereinafter - CJSC "P") to the defendant - open joint-stock company "A" (hereinafter - OJSC "A"), initially set out in the statement of claim, about reclaiming property from someone else’s illegal possession (about forcing the defendant to return property - a TO-49 loader-excavator), where the plaintiff indicated the provisions of Articles 209, 282, 285, 290, 291 of the Civil Code as the legal basis for the claim.
As factual circumstances, the existence of which was associated with the substantive legal claims of the plaintiff against the defendant, the plaintiff referred to the defendant’s violation of the rights of the owner, expressed in the failure to return property transferred under the storage agreement.
During the consideration of this dispute, the plaintiff clarified the claim: he asked to oblige the defendant to return the property - a TO-49 loader-excavator. In this petition, as a legal basis for the claim, the plaintiff indicated the provisions of Articles 290, 776, 779, 790 of the Civil Code, and as the factual circumstances of the case, the plaintiff referred to the improper fulfillment by the defendant (custodian) of obligations under the storage agreement relating to the custodian’s obligation to return what was transferred to him by the enterprise ( depositor) of property on the basis of the transfer and acceptance certificate.
The plaintiff’s request to clarify the claim, which was accepted by the court of first instance for consideration and according to which the plaintiff asked to force the defendant to return the property transferred under the storage agreement, essentially changed the subject and basis of the claim (initially, a demand was made for the recovery of property from someone else’s illegal possession in connection with violation of the rights of the owner).
Under the above circumstances and on the basis of the first and third parts of Article 297 of the Code of Criminal Procedure, the Judicial Collegium for Economic Disputes came to the conclusion that the decision of the first instance court was canceled and the case was sent for a new trial.
When reconsidering the case, the court of first instance was instructed to consider the dispute on the merits and invite the plaintiff in the case to clarify the subject or basis of the claim, assess the circumstance of whether the plaintiff - ZAO "P" is the owner of the claimed property or its legal owner, and, taking into account the above, make a decision a legal and reasoned decision in the case.
Court decisions with definite conclusions regarding the subject and basis of the claim cannot always be considered as instructions given for a wide range of similar cases. Very often, the approach of the courts depends on the circumstances of a particular dispute and it is impossible to recognize it as a universal legal position.
The difference in judicial approaches may result in risks for the plaintiff, which must be prepared for. It is important to formulate claims correctly from the beginning. An error in choosing a method of legal defense may lead to the fact that the court considers an attempt to correct it by clarifying the claims to be a simultaneous change in the basis and subject of the claim and refuses such clarification. It is important not to miss any details in the dispute and to develop the correct justification (factual and legal) for the chosen method of defense. Otherwise, if due to a weak position the claim is denied, then an attempt to correct this by filing a new, somewhat modified claim may end in failure. It is possible that the court, using a different approach, will regard the new claim as identical to the one already considered.
Practical difficulties with the qualification of the subject and basis of the claim arise in the most common situations.
Situation one: the plaintiff changes the legal basis of the claim
The parties entered into a lease agreement for property, which the defendant uses, but does not pay for use. The plaintiff applies to the court with a statement of claim to collect the amount of debt for rent payments. During the consideration of the case, it is established that the contract will be recognized as not concluded and the Plaintiff changes the claims, demanding the recovery of unjust enrichment from the Defendant for the use of the Plaintiff’s property.
In one case, the court considered that the Plaintiff had changed both the subject and basis of the claim. The plaintiff initially demanded a specific amount of money as a debt under the contract, then asked to recover the same amount as unjust enrichment. As a result, the court considered only the initial demand for debt collection under the contract, while stating the fact that the contract had not been concluded and rejected the claims.
In another trial, the court indicated that the subject matter of the claim did not change because the plaintiff made a demand for the recovery of a sum of money, and its subsequent determination as unjust enrichment under the given factual circumstances cannot be a change in the subject matter of the claim.
We believe that in the first case the court made a mistake.
In order to understand that the subject and grounds of the claim have not changed, it is only necessary to answer the question: is it possible, within the framework of one case, to simultaneously satisfy the demands stated in the first and second claims? If the satisfaction of one claim excludes the satisfaction of another, then the subject and basis of the first and second claims are identical.
The plaintiff filed a claim for the collection of the principal debt, but then added a claim for the collection of penalties.
At the same time, both the subject and the basis change. An additional requirement to apply a property sanction is added to the demand for debt collection. The main claim arises from a contractual obligation, and the basis for the additional claim is the defendant's violation of this obligation. Therefore, the requirement to apply property sanctions must be submitted by filing an independent claim and, for the purpose of procedural economy, ask the court to combine the claims into one proceeding.
Situation two: the plaintiff changes the initially stated period of delay and increases the amount recovered.
The plaintiff demands to collect the debt for one specific period (for example, for goods delivered in a certain period, or rent for certain months), but during the consideration of the dispute he increases the claims and asks the court to collect the debt from the defendant for other periods. Or, having collected a debt for one period in one legal dispute, he goes to court with a new claim against the same defendant - to collect the debt from the same agreement, but for a different period. Do the subject matter or the cause of action or both change in these cases?
In this case, neither the subject nor the basis of the claim changes, since the subject of the stated claims is a demand for debt collection, and the basis is a violation of an obligation arising from a specific contract, regardless of the period.
After the claim in the case is rejected, the plaintiff files a new claim, similar to the previous one, but with different arguments and reference to other rules of law.
To do this, we return to a simple formula: if within the framework of one case it is possible to simultaneously satisfy the demands stated in the first and second claims, then the subject and basis of the first and second claims are different.
Situation three. The interest requirement changes to a contractual penalty requirement or vice versa
The plaintiff initially demanded a debt arising from the contract and a contractual penalty, but then reclassified the main claim as the return of unjust enrichment and, accordingly, changed the demand for payment of the penalty to a demand for the collection of interest. If the subject and basis of the claim for the main claim do not change, then for the additional claim they remain unchanged.
If the principal debt had already been collected by the plaintiff in another legal proceeding, and the plaintiff, when filing a new claim, made a demand to collect a penalty from the defendant, and then decided to change the demand to collect interest, then the subject of the claim changes, but the basis remains the same. If the law provides for several alternative ways to satisfy the claims of a plaintiff whose rights have been violated (remember the Law on the Protection of Consumer Rights), then we are only talking about changing the subject of the claim.
Situation four. The plaintiff collects a debt that arose from the same basis, for the same period, but in parts.
Initially, the plaintiff collected a debt in a certain amount, and then filed a statement of claim in court demanding to collect the remaining amount of the debt. This situation often occurs when the plaintiff claims a minimum amount for collection in order to save money on paying state fees.
If the Plaintiff, when filing the initial claim, does not clearly indicate that the amount is being recovered in part, then the court, when filing a subsequent claim, will conclude that a dispute about the right with the same subject and on the same grounds has already been resolved. After all, by filing a claim with a specific subject and basis in court, the plaintiff theoretically fully exercises his right to judicial protection, even if in monetary terms some part of the claims turned out to be outside the scope of this claim.
A similar situation arises when the Plaintiff discovers, after a court decision, an error in his own calculations. Having discovered an error, the plaintiff can no longer go to court with a demand for recovery of the remaining amount, since his right to judicial protection in a claim with this subject and this basis has already been exhausted.
Thus, in order to be able to go to court again to collect the rest of the debt, it must clearly follow from the judicial act on the first claim that the plaintiff went to court with the aim of collecting precisely part of the debt.
Partial debt collection is permissible if the corresponding part of the debt can be somehow specified (identified). Blog Olenskaya Inessa Vitalievna
