How to draw up a petition to consider a case in the absence of the plaintiff, defendant, or third party? Is it always necessary to appear in a civil case? What valid reasons for absence can there be?
We will consider all possible options for considering the case in the absence of the persons involved. We will tell you how to correctly draw up and submit to the court an application for consideration of a case without the presence of a party. Let’s answer the question: “can the court consider the case without my presence?”
Download a sample petition for your situation and get advice on your situation from our lawyers.
Consideration of a case in the absence of the plaintiff, defendant and other persons
There is no rule in civil procedural law that obliges you to be personally present in court if you are a party to the case. Although the law provides for the obligation to notify the court of the reasons for failure to appear, there is no liability for the absence of such a message.
The court cannot oblige the persons participating in the case to appear in court and present any documents. At the same time, the court has the obligation to notify about the time and place of the trial (Article 150 of the Code of Civil Procedure of the Russian Federation). Since there is no obligation to appear in court, the parties’ requests to force the other party to personally appear in court cannot be resolved positively.
At the same time, the lack of sanctions for failure to appear at a court hearing may be compensated by other negative consequences for participants in civil proceedings.
It is necessary to distinguish between the impossibility of appearing in court for some objective reasons of a valid nature and reluctance to participate in the trial. Participants in a case always have the opportunity to request a postponement of the consideration of the case.
| Note! |
| Motion for adjournment |
In the absence of petitions and statements indicating the reasons for failure to appear, the court, if there is evidence of proper notification, may consider the case in the absence of the defendant, plaintiff and other persons. In this case, the party’s position in the case will not be heard, the party will be deprived of the opportunity to respond in a timely manner to the opponent’s explanations and the evidence presented by him. When making a negative decision, the appellate authority will not accept a reference to failure to appear (in the absence of a request for consideration in the absence of a person) as an argument for canceling the decision.
Proceedings without third parties
The legislation does not provide for the negative consequences of failure to appear for other parties to the dispute. Practice shows that third parties do not take part in court proceedings and do not provide written statements to the court.
It is recommended that other persons study the rationale for the plaintiffs' statements and provide the court with written objections. If the third party agrees with the applicant’s justifications, notify the court about this.
Legal consequences for other participants occur when the decision affects the rights and obligations of these persons. In the future, obligations may arise to perform actions in favor of other persons.
Petition to consider the case in the absence of the defendant
The defendant has the right to file a motion to consider a civil case in his absence, indicating or without indicating the reasons for his failure to appear. In the absence of a statement from the defendant, the case will be considered in absentia proceedings (Article 233 of the Code of Civil Procedure of the Russian Federation).
We recommend that defendants in any case write to the court objections or responses to the claims. This will allow you to convey in writing your position on the case under consideration, which must be taken into account by the court when making a court decision.
| Note! |
| Objections to the claim |
It makes sense not to file a petition to consider the case in the absence of the defendant if there is no desire to appear in court, he needs to drag out the case and there is a possibility of subsequent cancellation of the default judgment.
In other cases, it would be correct for the defendant to draw up and submit to the court his application for consideration of the case without his presence. Download a sample petition for consideration in the absence of the defendant on the website.
Contents of the statement
The requirements for the content of the petition are provided for by the Civil Procedure Code. It is indicated in what form the statement is submitted to the court and what needs to be written in the petition.
This is important to know: Who pays the loan if the borrower is in prison
According to the law, a written statement can be made by a citizen without legal education. It is necessary to adhere to the specifics of drafting and list a number of formalities:
- local court where we submit the application;
- who compiled the document - citizen’s data, residential address;
- in the center is the word statement;
- in what dispute the citizen is taking part;
- reasons for holding a meeting in the absence of a party;
- request, with a request to satisfy demands or refuse;
- date of preparation, signature of the applicant.
In addition to the details set out above, the party’s application contains a request for written notification of the results of the consideration.
A separate statement is not always prepared. The parties to civil cases and their representatives indicate the request for proceedings directly in the claims. The defendants provide written refutations of the content of the claims.
Expert opinion
Kostenko Tamara Pavlovna
Lawyer with 10 years of experience. Author of numerous articles, teacher of Law
The law does not provide for the conditions for submitting petitions to the court. Applicants have the right to send an application by post and directly hand it over to the presiding officer during the judicial procedure. The court, taking into account the grounds for conducting the process without the participation of a party, taking into account the validity of the reasons, will make an appropriate decision.
Request for consideration of the case in the absence of the plaintiff
The plaintiff also has the right not to appear in court to hear the case regarding his claim. The presence of valid reasons does not matter. A simple reluctance to be present in person at the trial is enough.
For the plaintiff, a negative reason for the absence of a request to consider the case in his absence will be the possibility of leaving the statement of claim without consideration (Article 222 of the Code of Civil Procedure of the Russian Federation). This occurs when the plaintiff repeatedly fails to appear at the court hearing without a valid request, in the absence of a request to consider the case without his presence.
The plaintiff may specifically not file an application, since in some cases it may be advantageous to leave his claim without consideration (for example, there is no necessary evidence), so that later, after some time, the case can be reopened and its consideration continued.
Download our sample application for consideration in the absence of the plaintiff.
Decision-making
As mentioned earlier, the court makes an appropriate decision to hold a hearing without one of the parties at the beginning of the hearing. In this case, the weight of the reason is taken into account and the opinions of other parties are taken into account. A decision made regarding a petition in court cannot be appealed.
The consideration of the case is carried out in accordance with the general rules. There are no provisions in the legislation of the Russian Federation obliging participants in the process to be present during the proceedings in court.
Consideration of a case in the absence of a third party
Third parties are more likely than other participants in a civil case to inform the court about considering the case without their presence. This is because the decision does not directly define their rights and obligations. However, third parties should take into account that they are involved in the case, since the court’s decision may affect their rights and obligations (Article of the Code of Civil Procedure of the Russian Federation). A decision in a civil case can be used subsequently as having prejudicial force when claims are brought directly against a third party (for example, in a recourse claim).
We recommend that a third party inform the court about the possibility of considering the case in his absence by filling out a petition using our sample. In addition, a third party has the right to submit a written response to the statement of claim, in which he can reflect his position on the issue being considered in court.
| Note! |
| Feedback on the statement of claim |
We suggest using our sample application (petition) for consideration of a civil case without the participation of a third party.
Details of the application
When filling out an application for absence, you do not need to provide the judge with additional certificates.
Documents that confirm the circumstances of the case are attached to the claim, objection to the claim by the parties to the dispute. The very fact of written notification to the judge is sufficient to conduct a judicial procedure without a party. This is important to know: Settlement agreement in case of divorce
Justify the reason for postponing the consideration to another day.
If the defendant agrees with the content of the claim, there are no objections to the grounds for the statement, and attendance at the court hearing is not required. The presiding officer is notified in writing of the recognition of the claim and is asked to conduct the proceedings in the absence of the applicant.
In this case, the judicial procedure will not be delayed and will end with the adoption of a resolution to satisfy the claims. The legislation does not provide for the obligation of citizens to inform the judge of the real reason for failure to appear. You must follow the prescribed procedure, draw up an application and send it to the court.
During the trial, valid reasons arise for a party's failure to appear. The participant must ask the court to adjourn the hearing, indicating a suitable time to appear.
The liability of the parties to a civil dispute for failure to appear at a hearing is not established by law. However, this applies exclusively to participants in the proceedings. If a witness fails to appear, legal consequences arise - collection of a fine; if he fails to appear at the hearing again - forced delivery.
Petitions with a representative
The presence of a representative of a person participating in the case does not relieve him of the obligation to notify the court of the reasons for failure to appear, even if the representative himself participates in the court hearing. As a rule, the courts require that the application for consideration of the case in absence be written by the party in his own hand.
If a party fails to appear and a representative appears, there may be the same adverse consequences in the form of abandonment without consideration or proceedings in absentia.
A representative of a legal entity, organization or government body may file a petition to consider the case in the absence of the representative. As a rule, the court does not raise questions regarding such statements.
How to make a petition
Documentary notification to the court allows the case to be conducted in the absence of the citizen or to postpone the trial to another time. The rules for drawing up an application are not fixed by law, but there are certain requirements for execution:
- written format or on ready-made form;
- the presence of “live” signatures (there should be no facsimiles);
- Compliance with literacy.
A citizen can write a petition on his own or a lawyer can do it for him, which will allow him to correctly state the reasons for his failure to appear.
Drawing up and submitting a petition to the court
Drawing up a petition in which citizens or representatives of legal entities ask to consider the case without their participation is not very difficult. However, it requires certain details that must be specified:
- the court in which your application is addressed
- personal data and procedural status
- name of the application - Petition for consideration of the case in the absence
- details of the civil case for which the petition is being filed
- request to consider the case without your participation
- date and signature of the applicant
Additionally, in the petition you can request that a copy of the court order be sent by mail to your home address.
A request to consider a case in absence can be filed as a separate statement, but it is also permissible to include it in the text of other petitions and statements. addressed to the court. Plaintiff. For example. may declare the consideration of the case without his participation already in the statement of claim. and the defendant in the submitted objections.
The petition can be submitted to the court in person (to the judge or through the office) or sent to the court by mail. Your representative can also deliver such a statement. There are no special requirements for this action.
A request to consider a case in the absence of its participants is resolved by the court at a court hearing, the court issues a ruling indicating the possibility of considering the case in the absence of persons participating in the case.
Questions and answers
Many citizens are not familiar with the procedural procedure for resolving disputes in courts. In addition, some people have no desire to go there for subjective reasons. For example, reluctance to communicate with the opposite party in the event of filing a claim for divorce.
The way out is to file a separate petition to consider the case without visiting a judicial authority. But how to do everything right?
Lawyers are often asked such questions. And here are the answers to some of them.
What to do if your application is not considered
Filed a claim for damages from the person responsible for the accident. There was not enough insurance to repair the car. I don’t have time to go to meetings myself, so I submitted an application to consider the case without my participation. The judge ignored him. In addition, the defendant insists on my presence. What should I do?
We recommend! How to write a petition to the court
Anton, Moscow.
Expert commentary
Roslyakov Oleg Vladimirovich
Lawyer, specialization civil law. More than 19 years of experience.
Ask a question
The most correct way out of the situation would be to issue a power of attorney to a lawyer or enter into an agreement with a lawyer. The power of attorney is certified by a notary. First, the specialist will familiarize himself with the case materials and develop a legal position. Well, there will now be no need for the personal presence of the plaintiff.
How to notify the court of your inability to attend
After the divorce, I am dividing the apartment with my ex-husband in court. However, I was injured and am now in the hospital. Tell me what is the best way to notify the court of the impossibility of attending the next hearing? Thank you in advance!
Svetlana, Moscow.
Expert commentary
Roslyakov Oleg Vladimirovich
Lawyer, specialization civil law. More than 19 years of experience.
Ask a question
In such a situation, this is what they usually do. The application or petition is written by hand. A document confirming your stay in hospital treatment is attached to it. Everything is sent to the court address by mail in advance. This mission can be entrusted to relatives and friends. At the same time, it is also useful to notify the judge’s secretary by telephone about any difficulties that have arisen.
Is it possible for the plaintiff not to attend the trial?
Engaged in the collection of moral damages from an enterprise located in another city. Documents were sent to the local district court by mail. Due to my busy schedule, there is no time to travel. What is the best thing to do in the described situation?
Kirill, Krasnogorsk, Moscow region.
Expert commentary
Roslyakov Oleg Vladimirovich
Lawyer, specialization civil law. More than 19 years of experience.
Ask a question
There are two ways out of the situation. The first is to file a petition to consider the case without the presence of the author of the claim. However, disputes about compensation for moral damage are quite specific. Therefore, the court will probably want to listen to the injured party. In addition, participation in the case can be entrusted to a representative by proxy. Payment for his services is additionally collected from the second party.
Please do not consider the case in my absence.
She filed a claim to claim money under the receipt and loan agreement. However, she was forced to go on a long business trip to another city. I want to be present in court in person. What's the best thing to do now?
Larisa, Balashikha.
Expert commentary
Roslyakov Oleg Vladimirovich
Lawyer, specialization civil law. More than 19 years of experience.
Ask a question
When the date of the hearing is known, it is worth sending a petition to the court by mail to postpone the case . A copy of the travel certificate is attached to it. If the trip drags on, then you should think about a representative who will take charge of supporting the case in court. He is issued a notarized power of attorney with an agreed set of powers.
Letter of refusal to cooperate
If you need to create a letter of refusal to cooperate, look at its sample and comments to it.
- At the beginning of the letter, write who it is intended for: indicate the name of the organization, position and full name of its representative, to whose name you are writing a response. Use a polite form of address, thank for the attention shown to your company and then move on to the essence of the message.
- Be sure to refer to the letter in response to which you are writing a refusal, and indicate the circumstances that caused the negative reaction. If your opponent attached any additional papers to his proposal, indicate that you have read them.
- If possible, express in your letter an expression of hope that cooperation will take place, without failing to include the conditions that must be met for this to happen.
- Finally, sign the letter and date it.
How to send a letter
A letter can be sent in different ways, but it is best to choose the one through which the original message was sent. The most acceptable way is to send it via Russian Post, but in this case you should take it registered with acknowledgment of delivery; you can also use delivery through a representative or courier (this method guarantees faster delivery). It is also acceptable to use fax, electronic means of communication, and even social networks or instant messengers (but only on the condition that the sender of the initial letter himself uses this method of communication).
Legal grounds
Neither the plaintiff nor the defendant can simply refuse to attend the meeting. Art. 167 of the Code of Civil Procedure of the Russian Federation requires participants in the case to notify the court of their absence if there are good reasons for this. These include the following special cases:
- disease;
- urgent business trip;
- family problems;
- inability to attend hearings due to the remoteness of the court;
- other circumstances.
“Other” cases may include other reasons that physically do not allow the presence of a participant at the trial. However, in order to prove this, a document must be attached to the application that confirms the applicant’s position.
Another option is the assumption that the case cannot be lost in any way, and therefore it is not necessary to attend the meeting in person. But you shouldn’t indicate such a reason in the application - it’s better to refer to, for example, a long trip.
It is worth noting that the Civil Procedure Code requires the applicant to notify the court of his failure to appear in any case, regardless of the seriousness of the reason.
A similar scheme is provided within the framework of the Arbitration Procedure Code of the Russian Federation. Participants in the arbitration process have the right to ask the court to make a decision on the case in their absence.
It should be understood that such a statement indicates the applicant’s agreement with the composition of the court. However, this does not limit his right to appeal in any way if the decision made does not suit the party to the case.
