Waiver of a claim in arbitration proceedings - sample application and procedure for execution

Essence and legal grounds for refusal

The plaintiff has the right to terminate the resolution of the dispute in court by withdrawing the statement of claim. Also, the victim may not waive all claims, but only some of them. In this case, the court will continue to consider the case, but its proceedings will only move on to the remaining claims.

In appellate arbitration, a refusal can be made before the final decision is made (according to paragraph 2 of Article 49 of the Arbitration Procedure Code of the Russian Federation).

IMPORTANT - filing a refusal does not mean its acceptance by the court if it violates the rights of other parties to the process.

In what cases is it served?

A refusal can be filed for various reasons and circumstances that changed the plaintiff’s opinion or attitude during the consideration of the case. The main waivers are if:

The defendant voluntarily settled all claims.
Circumstances changed during the judicial investigation - new facts were discovered, the plaintiff’s demands lost their relevance or became unfounded.

There may be situations where a claim is withdrawn in the arbitration process, when the applicant is put under pressure by the defendant, or after the start of the consideration of the case, a transaction occurs that changes the owners of the defendant legal entity and it actually comes under the control of the applicant.

Sample application for the return of a claim to withdraw a statement of claim from the arbitration court

The execution of an application to withdraw a claim must comply with minimum rules so that the court can determine its content and relevance to a specific claim. Therefore, its details, based on practice, include:

Name and address of the arbitration court to which the claim was sent.
Names and addresses of the parties.
Subject of the claim.
Method and date of filing the claim, incoming number (if filed by courier).
Subject of the application (please return the statement of claim).
Signature of the plaintiff or his representative.
A representative's power of attorney containing the necessary authority.

In the same way, a request for the return of an application for the application of security can be made. Clause 3, part 1, art. 129 of the Arbitration Procedure Code of the Russian Federation in this situation is applied by analogy.

A letter to withdraw a claim can be received both before the court accepts the claim and after. Let's consider both situations.

Consequences of refusing a claim

The consequences of failure are represented by the following actions:

Termination of consideration of the case.
Reimbursement of legal costs.

Termination of court proceedings mostly concerns financial disputes. If the defendant, after initiating the case, independently pays off the claims and obligations to the applicant’s side, who has no claims left, further consideration of the case loses practical meaning.

The legal process is terminated when the plaintiff withdraws the statement of claim, and there must be no circumstances affecting and limiting the rights of the remaining participants in the process. Once the statement of claim is accepted, any claims against the defendant are released.

Revocation becomes possible due to the fact that the law takes into account the agreement of the parties to any relationship with minimal government intervention in private affairs.

It is possible to draw up a waiver of a claim in the arbitration process if there are grounds that do not interfere with the law and do not affect the interests of third parties. The plaintiff, when filing an application, must remember the consequences and take them into account. If the bailiff accepts the application, then under certain conditions it obliges the defendant to compensate the plaintiff for the costs incurred in legal proceedings.

Actions of the arbitration court upon receipt of an application to withdraw the claim before it is accepted for proceedings

If the plaintiff receives an appeal before accepting the claim, the court is obliged, guided by clause 3, part 1, art. 129 of the Arbitration Procedure Code of the Russian Federation, make a ruling on the return of the statement of claim. It resolves questions about returns:

statement of claim;
applications (petitions) for security;
the state duty paid by the plaintiff.

The procedure for appealing the determination (appeal) is also indicated.

According to the general rule established by Art. 186 of the Arbitration Procedure Code of the Russian Federation, the ruling in the form of an electronic image is posted on the official website of the arbitration court no later than the next day after the day it is issued.

In addition, by virtue of Part 3 of Art. 129 of the Arbitration Procedure Code of the Russian Federation, a copy of the ruling on the return of the claim, together with the claim itself and the documents attached to it, will be sent by the court to the plaintiff within the same period.

The ruling to return the claim can be appealed on appeal within a month after its issuance (Part 3 of Article 188 of the Arbitration Procedure Code of the Russian Federation). In judicial practice, there are cases of such appeals.

For example, in one of the cases, the plaintiff appealed directly to the court of first instance and at the same time to the court of appeal, pointing out the falsification of the withdrawal of the claim. Both courts canceled the ruling to return the claim (resolution of the 13th AAC dated October 1, 2015 No. 13AP-21749/15 in case No. A56-54033/2015).

Documents required for registration

In order for a tax official to accept your application and consider it, along with the application you must provide other documents that will become the basis for payments.

Payment documents

It is important to keep a receipt, a receipt, or a photocopy of a document evidencing payment.

Copy of the definition . As a rule, if the case ends with the plaintiff abandoning the claim or dismissing the case, the court issues an order to return.
A certificate from a judicial authority indicating that the case has been discontinued.

The list of documents is the same for both the court of general jurisdiction and the Arbitration Court.

How to write a waiver application

The Arbitration Procedure Code of the Russian Federation does not specify the exact requirements for the form and content of the application for refusal.

The list of mandatory items that must be indicated in the document includes:

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name of the court hearing the case;
information about all participants in the process;
details of the arbitration case, registration number;
expression of will to waive claims (reasons can be specified, but not required);
request to accept the refusal and dismiss the case;
date and signature of the applicant or his representative by proxy.

Full or partial refusal of the claim is allowed. For example, you can waive demands for the principal amount of the debt if the defendant has already paid it, but insist on collecting punitive damages. In this case, the case will be partially dismissed, while the rest of the proceedings will continue according to the general rules.

Since the arbitration process is based on adversarial principles, other parties to the case can express their opinions on the application. In practice, if the plaintiff confirms the voluntariness of his decision, the opinions of the defendant or third parties will not matter.

Expert opinion

Musikhin Viktor Stanislavovich

Lawyer with 10 years of experience. Specialization: civil law. Member of the Bar Association.

If the application is submitted by a representative, he must confirm the existence of such authority. When issuing a notarized power of attorney, or a document from an organization or individual entrepreneur, the entire scope of authority is immediately indicated.

If the power of attorney does not specify the right of revocation, the representative's application will be rejected. If a representative participated in the case at the oral request of the plaintiff, he does not have the right to declare a waiver of the statement of claim.

You can file an application to withdraw your claim at any stage of the process, until the court has made a final decision. If the decision has already been announced, refusal is not allowed.

After satisfying the application, the court is obliged to issue a ruling to terminate the case, explain it to the parties, send it by mail or issue it through the office. As with other procedural acts, a complaint can be filed against a ruling to terminate a case.

If the plaintiff subsequently wants to re-file an application with a similar subject of dispute and requirements, consideration of the case will be refused. Even if the court does not reveal such a fact immediately upon receipt of the documents, the defendant, another participant in the process, can file a demand to terminate the case.

Reasons for returning the state tax

A refund of the paid fee is possible only in certain cases . Let's look at each in detail.

Termination of the case . Leaving a claim without consideration can only occur due to the presence of compelling reasons. These include:

death physical persons or closure of legal entities. persons , as a result of which there is no subject in the case against whom claims would be made;
the plaintiff has decided to waive all of his claims in the pending case;
the arbitration court does not have jurisdiction to consider documents in the case;
the decision on the case under consideration had already been made earlier by the arbitrator .

The fate of this claim must be decided by a court of general jurisdiction.

If one of the above points occurs, then the citizen has the opportunity to write a claim for a refund.

Collection of legal expenses in arbitration proceedings

If the defendant voluntarily satisfies the claims, the following shall be collected from him:

court expenses;
payment of state duty;
expenses for a representative (service for drawing up a statement of claim), at the request of the plaintiff.

According to the explanations of the Supreme Arbitration Court of the Russian Federation, paragraph 6 of the Letter from the Presidium of the Supreme Arbitration Court of the Russian Federation on “On certain issues of the practice of applying Chapter 25.3 of the Tax Code of the Russian Federation” states that the applicant is requesting cancellation due to the fact that the defendant, after the ruling, satisfied the claim voluntarily. Then the arbitration court begins to recover from the defendant in favor of the plaintiff the costs incurred by the latter to pay the state duty.

When the request for revocation is not justified by the voluntary nature of the fulfillment of obligations, then the state fee is returned, but other legal costs are not.

Reasons for refusing payment

As it turned out, there are a number of grounds for refusing to refund the state duty to the plaintiff:

the parties decided to enter into a settlement agreement ;
the reason for filing the claim has been eliminated ;
the claims that were brought against the defendant were extinguished .

After the plaintiff has voiced his refusal, he cannot re-apply to the court with the same claims against the defendant.

This is only possible if new, previously unknown circumstances appear in the case.

The reasons for refusal or termination of a case are also regulated by law, namely, Article 333.40 of the Tax Code of the Russian Federation.

The grounds for termination of production are set out in Article 151 of the APC.

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Petition for return of claim

The petition is submitted before the judge accepts the documents and issues a ruling to initiate proceedings, that is, no later than five days from the date the court receives the documents. To recall them, we recommend following the following algorithm of actions:

Make a written request.

Please include the following required information:

name of the judicial authority;
information about the applicant (name of organization or full name of individual entrepreneur, address, contact phone number, email);
date, outgoing number;
document's name.

Describe the circumstances of the case:

when the application was submitted;
to which defendant;
what requirements were set out in it.

The reasons for the revocation may be included in the petition, although this is not required by law.

State your requests to the judiciary:

return submitted documents;
refund the paid fee.

Sign and decipher it.

Submit the document to the court office, send it by mail (secured letter) or via the Internet.

If the petition is drawn up and submitted by a person under a power of attorney, then a copy of the power of attorney is attached to it.

Wait for a court decision to grant the petition. The judge's ruling also addresses the issue of returning state duty from the federal budget.

Returning documents does not prevent them from being resubmitted.