Refusal of the claim in the civil process, refund of the state duty and consequences

Rejection of the claim in the civil process is a specific form of protection of rights. Implementation of the refusal is made by the plaintiff voluntarily, without pressure from the defendant, regardless of at what stage of the trial the case is located.

The concept of

Refusal of the claims contained in the claim implies the right of the plaintiff to complete the civil procedure by withdrawing all or part of the claims against the respondent. Indication of the possibility of failure is contained in Art. 39 ГПК the Russian Federation and represents the dispositive right of the claimant. In this case, the refusal of the claim in the civil process also means the termination of the material and legal requirement. Nevertheless, such a will does not affect the substantive law in any way and does not exclude its extrajudicial protection, or it may be due to the inexpediency of the statement of claim or, which is much more common, especially if it is a question of refusing part of the claims, Violated rights of the plaintiff. So, the refusal of judicial protection is consistent with the subjective nature of rights and the ability to dispose of them at discretion in accordance with the provision of Article 9 of the Civil Code.

Causes

In most cases, the judge easily accepts the refusal, if the plaintiff properly informs him of the reasons. The arguments that guide the applicant can be different. If the claim is connected with a material claim, then most likely, the defendant could pay the amount of debt to the court session and recover the legal costs. In such cases, it is also possible to refuse only part of the requirements. For example, the debt was paid in the principal amount, but interest remained unpaid. Termination of the process on the initiative of the plaintiff is possible in connection with new circumstances in which it is unprofitable or unreasonable to support claims.

The plaintiff can waive the claim if the other party ceases to violate the rights. For example, the defendant opened a passage through the territory in respect of which the servitude was previously established. In disputes over the dissolution of marriage, the basis for revoking the claim can be the well-established relationship between the spouses. And in cases concerning the protection of dignity - the public recognition of the defendant in the publication of information that is not true, do not correspond to reality.

Types of refusal of requirements

The study of the norms of the Civil Procedure Code allows one to speak of two types of refusal: a complete waiver of the claim in the civil process, expressed in the denial of all previously stated requirements, and partial. Partial refusal should be distinguished from the reduction of claims, although along with the reduction of requirements, there is also a completion of the proceedings in a certain part.

The change in the amount of claims towards their reduction does not mean the termination of the trial and does not mean that the plaintiff has no right to apply again, as in case of refusal. Also, the possibility of combining these actions is not completely excluded. For example, after the filing of a claim for the termination of the contract, the return of money for the goods, as well as the payment of the fine, the "dribble" penalty and the compensation of legal costs, the respondent decided to transfer the amount equal to the value of the goods (which does not exclude claims for a fine). Such an action limits the amount of the forfeit by the date the money is returned for the goods and compels the plaintiff to waive the basic requirement in the process, since it is executed.

The form of refusal of claims in the civil procedure

Before proceeding to the meeting, the judge, in accordance with the rules of the proceedings, asks the plaintiff whether he has a desire to conclude an amicable agreement or a will to refuse a claim in the civil process. Article 173 of the CCP contains two forms of refusal, oral and written.

According to the general rules, an oral petition can be announced in the process until the court is removed to a special room and can be provided on a par with the written one in the appellate or cassation instance. However, the form itself does not affect the legal effect of the application. An oral statement is recorded in the record, and a videoconference will require written confirmation from the judicial body conducting such an event.

The order of refusal of claims in the civil process

As it was already said, the refusal can be carried out either verbally or in writing, while the verbal statement is to be fixed in the minutes of the meeting, and the court may, among other things, require you to sign an oral petition. However, in most cases, the judge will prefer an oral statement written, because for the first it is necessary to shortly draw up the minutes of the meeting. A written application, filed during the meeting, is attached to the case, which is what the secretary is marking.

How does the court accept a waiver of action

The court accepts the refusal of the claim after the receipt of the petition. The court is obliged to explain to the plaintiff what consequences are behind it, in confirmation of which he puts the painting. On the basis of refusal, the judge draws up a ruling that completes the judicial proceedings. However, if it concerned only a part of the claim, the proceedings continue. Refusal of the claim at the same time must be unconditional, otherwise it is a question of an amicable agreement with respect to a specific subject. The refusal can be adopted both in the appellate court and in the cassation instance, since its very essence does not contradict such an outcome of the case. An essential condition for accepting a refusal of a claim is absence of violations of substantive law.

The court's decision to accept a waiver

Based on the results of consideration of the application for the refusal of the claims, the court makes a relevant determination. In the definition there should be 4 parts: introduction, description, motivation and resolution. In the introduction indicate the composition of the court, the list of persons involved in the case, as well as a brief description of the claims of the plaintiff. The circumstances of the case are described in chronological order. Then the court brings the legal basis for the legal admissibility of the refusal to the base to make a resolution on the completion of proceedings followed by a brief description of the negative consequences of the refusal for the plaintiff. At the end of the trial, the court indicates how long the decision can be appealed.

Can the court not accept the refusal of the claim in the civil process?

The consequences of the refusal of the claim are significant for the applicant, therefore the court is obliged to assess whether the plaintiff does not violate his own legitimate interests. In practice, this coincidence is rare. Art. 39 ГПК contains the statement that the court has the right to reject the refusal of the claim, if such action of the plaintiff is directed against the rights of third parties, as well as legal relations protected by law. Find out whether there is a violation of rights, the court has the right to only examine the case on the merits. However, sometimes the answer to the question of the lawfulness of refusal of a claim is contained on the surface.

For example, a court can not satisfy a petition for refusal in the case of the assignment of alimony to minors, and their representative (often a woman) insists on fixing the act of refusal, so that later the other parent did not subsequently have the right to file a claim for alimony from children . Nevertheless, such a refusal substantially violates the right of children to receive means of subsistence from both parents.

Consequences of refusal of action

Refusal of the claim in the civil process, the consequences of which are not so favorable for the plaintiff, must be carefully thought out in advance. First, the refusal deprives the plaintiff of the right to compensate for the money spent to pay for the services of a representative, to conduct expert examinations, etc. In accordance with Art. 101 CCP RF the plaintiff will be obliged to pay for the defendant all the expenses that he incurred in connection with the claimed claim. The plaintiff is also deprived of the right to file a claim again with the same object and reason, upon receipt of such an action, the court will make a determination to refuse to accept it. If the court inadvertently starts production, then when the circumstances are clarified, it will be terminated. The best option would be to conclude a settlement agreement, as the parties can agree on all the issues in the version that will suit them, especially with regard to court expenses.

Refusal of the claim in the civil process: a sample application

In the cap of the application for refusal, the court to which he was sent, the name and details of the parties, as well as the details of the case, are indicated. The formulation of the petition is approximately as follows:

"On consideration of the N court of the city _______ __________ area is a claim _____________ (personal data of the claimant) to ________________ (personal data of the respondent) about ______________ (the essence of the claim).

Since the disputable issue was resolved before the court session, the plaintiff considers it right to abandon the previously stated requirements. The refusal is drawn up voluntarily, the plaintiff is aware of the legal consequences of the court's satisfaction of this application. Guided by the provisions of Art. 39 of the Civil Code of the Russian Federation, I ask you to take it into consideration and to renounce the claim in the civil process and return the state duty. "

The expediency of termination of the proceedings on the initiative of the plaintiff

The action to waive claims has so many negative consequences for the plaintiff that the representative of the party must carefully consider his decision. If there are deficiencies in the substantiation of the claim, the applicant should better correct the deficiencies prior to determining whether the claim is accepted for production. According to the provision of Art. 135 CCP plaintiff has the right to return the claim before making a decision on its acceptance, and return, in turn, is not an obstacle to repeated application on coinciding subjects and grounds. When the suit was already accepted for production, it is much more correct to conclude an amicable agreement.

However, in a number of cases, it is really beneficial for the plaintiff to withdraw from the claim, especially if it is a relationship that is of a lengthy nature. For example, ex-spouses agreed to pay alimony in a larger amount than one-fourth of the income.

Refund of state duty for refusal of claim

Despite the refusal of the claim, the state duty is returned to the plaintiff on the basis of the application in full, except cases of appeal to the Supreme Court, then under the settlement agreement only half of the sum is returned, and in case of voluntary actions on the part of the defendant before the court session the paid fee is not returned at all, even If there was a refusal of the claim. The fee is refunded only if there is an original payment document or a certificate of payment made from the bank. The application is made in free form and contains information about the reasons for the return, the amount of the fee, information about the claim, the applicant. The legal basis for satisfying the claim is the waiver of the claim. The return of the state duty is made by a court decision in the form of a determination and enters into force within 15 days. Afterwards it is necessary to submit to the tax authority a certificate of payment, a passport, an appropriate application with an indication of the current account, a copy of the determination based on the refusal of the claim.

The fee is returned within 3 years from the date of transfer of funds (according to the general rule within 1 month) upon the return of overpaid funds.

Thus, the refusal of the process from the substantive requirements contains a number of not very positive consequences for the plaintiff in the form of legal costs and compensation for the defendant's expenses, which raises the question of the expediency of the petition for the completion of the proceedings on the applicant's initiative. In addition, the plaintiff loses the possibility of repeated treatment. The settlement agreement is the best alternative to such a measure as the refusal of the claim in the civil process. The state duty is refunded on the basis of the court's decision and the application to the tax authority.