Article 129 of the Arbitration Procedure Code of the Russian Federation. Return of the statement of claim (current version)

Returning a statement of claim: deadline for making a decision

An appeal to the court in civil disputes is formalized by a statement of claim, an application for the issuance of a court order, or an application in a special proceeding. After filing a claim, the court must make one of the following decisions within 5 days:

• accept the statement of claim for proceedings
• refuse to accept a claim
• leave the claim pending
• return the application

When making one of the listed decisions, the court is obliged to make a reasoned determination indicating the legal grounds. At the same time, for the return of an application for the issuance of a court order, the grounds are established in a separate article 125 of the Code of Civil Procedure of the Russian Federation.

Cases of returning a statement of claim

In addition to refusing to accept the statement of claim, the court may issue a reasoned ruling to return the filed claim if:

1. The procedure for pre-trial settlement was violated. When faced with a violation of the law by officials, in some cases the law obliges a citizen to send a complaint or claim to the violator to protect and restore his rights and legitimate interests as soon as possible. If the claim is successful, the parties to the dispute draw up a corresponding agreement in writing, which, if necessary, can be certified by a notary.

1. The claim is brought by an incompetent person , that is, a person who, due to not reaching the age of majority or due to a mental disorder, is not able to exercise his civil rights and obligations in the absence of guardians or trustees;
2. Jurisdiction is not respected;
3. The application is not signed by the applicant or signed by a person who does not have these powers due to the lack of a power of attorney to represent the applicant’s interests in court;
4. The presence in the proceedings of the plaintiff’s application for the return of the claim , which a citizen can submit to the court before the court makes a ruling on accepting the submitted application for proceedings;
5. There is an identical case in court proceedings.

The decision on return is made by the judge within five calendar days, after which it is sent to the applicant (plaintiff).

Grounds for returning the claim

According to Art. 135 of the Code of Civil Procedure of the Russian Federation, the court will return the claim and documents when:

• the plaintiff violated the pre-trial procedure for resolving the dispute, which is mandatory by law. For example, the return of the statement of claim will follow if the plaintiff has not filed a claim for termination of the contract. In order to avoid the return of the application on this basis, the applicant needs to clarify whether a pre-trial procedure is needed in his relations with the defendant. Moreover, such a situation is possible not only when the plaintiff has not taken measures to resolve the dispute out of court. But even when, along with the claim, he did not provide evidence of compliance with the conditions of pre-trial resolution of the dispute (if necessary)
• Instead of a lawsuit, an application for a court order should have been filed. For example, a claim for alimony is less common than a court order on the same issue
• violation of rules of jurisdiction. Since the person bringing the claim has the right to appeal only to the court authorized to consider this category of cases
• violation of the rules of jurisdiction (the case must be considered by an arbitration court)
• the claim was filed by an incapacitated person. Such persons, by virtue of the law, do not have the right to take independent legal actions, including the right to bring a claim in the absence of their guardians (trustees). This case does not apply to an application for recognition of legal capacity.
• the plaintiff himself filed an application for the return of the claim (before it was accepted for proceedings)
• the claim was not signed by the plaintiff (his authorized representative if there is such a right in the power of attorney)
• there is already a claim in court proceedings (including arbitration) regarding the same dispute
• after leaving the claim without progress, the plaintiff did not provide an application to correct the shortcomings of the claim.

The court will apply the latter basis after the expiration of the procedural period established for correcting the deficiencies. The court will indicate the shortcomings themselves in the ruling on leaving the statement of claim without progress.

In this case, the plaintiff can send an application to the court to extend the procedural period when he does not have time to carry out all the actions. Or maybe not direct.

And then the court is obliged to return the claim and documents.

Part 4 of Article 128 of the Arbitration Procedure Code of the Russian Federation defines the adverse legal consequences of untimely elimination of the deficiencies specified in the court ruling, in the form of return of the claim. Returning a statement of claim is one of three (along with accepting the statement and leaving it without progress) procedural actions that can be performed by an arbitration court after filing a statement of claim in court. Grounds for returning the statement of claim. 1. The case is beyond the jurisdiction of this arbitration court. Lack of jurisdiction should be understood as a violation of the rules of territorial and generic jurisdiction. Disputes about jurisdiction between arbitration courts in the Russian Federation are unacceptable. 2. One statement of claim combines several claims against one or more defendants, if these claims are not related to each other. Return of a claim on this basis is possible only if the plaintiff has filed heterogeneous claims or claims arising from different grounds. 3. Before the ruling was made to accept the statement of claim for the arbitration court proceedings, the plaintiff received a request to return the statement. The right of the plaintiff to file such a request for the return of the statement of claim follows from the basic principle of the arbitration process - the principle of discretion. By filing this petition, the plaintiff is not deprived of the right to re-apply to the arbitration court with the same demand and on the same grounds. 4. The circumstances that served as the basis for leaving the statement of claim without progress have not been eliminated within the period established in the court ruling. This basis is applicable in two cases: - when the plaintiff did not eliminate the violations in the execution of the statement of claim within the period established by the court; - when the plaintiff presented documents to the court within the period established by the court, but they cannot be accepted in pursuance of the court’s ruling as confirmation of the elimination of the violations committed. 5. If a request for a deferment, installment payment of the state duty, or a reduction in its amount is rejected. The return of an application for declaring the debtor insolvent (bankrupt) has some features. In accordance with Part 1 of Art. 223 of the Arbitration Procedure Code of the Russian Federation, cases of insolvency (bankruptcy) are considered by arbitration courts according to the rules of the Arbitration Procedure Code of the Russian Federation with the features established by federal laws governing issues of insolvency (bankruptcy), i.e. special rules take precedence. When deciding whether to return an application to declare a debtor insolvent (bankrupt), the court must be guided by clause 1 of Art. 44 of the Federal Law “On Insolvency (Bankruptcy)”, which establishes that an application to declare a debtor bankrupt that does not meet the requirements provided for in Art. Art. 37 - 41 of this Federal Law, is returned by the arbitration court. On the return of the statement of claim, the arbitration court issues a ruling, which indicates the grounds for returning the statement, and resolves the issue of returning the state duty from the federal budget. A copy of the ruling on the return of the statement of claim is sent to the plaintiff no later than the next day after the day the ruling was issued or after the expiration of the period established by the court to eliminate the circumstances that served as the basis for leaving the statement without progress, along with the statement and the documents attached to it. The arbitration court's ruling to return the statement of claim may be appealed. In case of cancellation of the ruling, the statement of claim is considered filed on the day of the initial application to the arbitration court. The return of the statement of claim does not prevent the repeated filing of the same claim with the arbitration court in the general manner after the elimination of the circumstances that served as the basis for its return.

Court ruling to return the statement of claim

When returning the claim, the court issues a ruling in which it explains where the plaintiff must turn in case of failure to comply with jurisdiction or indicates the circumstances that do not allow initiating a civil case.

He will make a determination within 5 working days. When sending a claim by mail, the period is calculated from the moment it is received by the court.

Expert opinion

Stepanov Maxim Anatolievich

Legal consultant with 6 years of experience. Specialization: civil law. Extensive experience in drafting contracts.

The court's ruling to return the claim is sent to the plaintiff. After the determination comes into force, all documents are returned to the applicant. The plaintiff may file a private complaint against such a determination.

Legal consequences of returning a statement of claim

The consequences of returning the application are a refusal to initiate a civil case in court. In situations where the plaintiff brings a claim again without eliminating the violations specified in the court ruling, the judge returns it again.

If the claim is returned, the applicant is not deprived of the right to re-apply to the court with the same claim. This is the main difference between the return of a statement of claim and the refusal to accept it, which completely excludes the repeated filing of such a claim in any court.

The return of the statement of claim is the basis for filing an application for a refund of the state duty.

A repeated application to the court will constitute a new independent claim. The issue of accepting a new claim will be decided on a general basis.

What to do when returning a claim?

The return of the statement of claim to the plaintiff means the court’s refusal to initiate a civil case. Unlike the court’s refusal to accept an application, the return of a claim does not deprive the citizen of the right to re-apply to the court with the same claim.

If the court returns the statement of claim, then you, as the applicant, need to restore the validity of the document. There are two ways to restore the action:

1. by making amendments to the returned application;
2. by appealing a court decision in a case where, in the plaintiff’s opinion, the reasons for the return are not objective.

Read what to do if the statement of claim is left without progress via the link

Appealing a ruling to return a statement of claim

A private complaint is filed within 15 days from the date of adoption of the ruling. If the deadline is missed for a good reason, the court may reinstate it. If a judge's ruling to return a claim is canceled by a higher authority, the claim is considered filed from the date of the first appeal to the court, which is important when the issue of limitation periods is being resolved.

Clarifying questions on the topic

Hello, I was sent a ruling on the return of the statement of claim. Since the power of attorney does not indicate that I have the authority to sign claim documents.

The violation was eliminated, a new power of attorney was drawn up. Question: how to add a new power of attorney to the statement of claim and submit it a second time? Should I wait for the court to send the documents by mail or go to the court office?

You did not eliminate the shortcomings of the statement of claim, since at the time of filing the documents with the court you did not have the authority to sign the statement. Now you need to pick up the claim material (faster if you go to court in person) and submit it again, attaching a new power of attorney and indicating a date in the claim later than the date of issue of the power of attorney.

Good afternoon. At the court hearing. The plaintiff did not appear. And the judge, at my request, decided to close the case. But as soon as I left the judge, after a while the defendant came in and tearfully begged the judge to cancel her decision. . And now the judge makes a decision to order a forensic examination. How can I prove that the judge is not legitimate?

Minutes had to be kept at the court hearing. Check it out. If it contains incorrect data, please submit comments.

re-filing an administrative claim in the manner prescribed by law, I did not find any information at all about the specified procedure and the period within which a repeated claim must be filed.

You can file at any time if there are no grounds for applying Article 128 of the CAS RF: “Unless otherwise provided by this Code, the judge refuses to accept an administrative claim if: there is a court decision that has entered into legal force on an administrative dispute between the same parties , on the same subject and on the same grounds, a court ruling on termination of proceedings in this administrative case in connection with the acceptance of the administrative plaintiff’s refusal of the administrative claim, approval of an agreement on reconciliation of the parties, or there is a court ruling on the refusal to accept the administrative claim. The court refuses to accept an administrative claim challenging normative legal acts, decisions, actions (inactions) that violate the rights, freedoms and legitimate interests of an indefinite number of persons, if there is a court decision that has entered into legal force, adopted on an administrative claim on the same subject;”

Hello! The judge made a ruling to return my application, information about this appeared on the website 14 days later. I did not receive the documents in my hands. The deadline of 15 days for filing a complaint has accordingly been violated. What to do in this case?

After receiving a copy of the determination, write a complaint. to which attach a petition for restoration of the deadline. In the petition, indicate this reason for missing the deadline.

received a ruling to return the statement of claim; the claim submitted by the plaintiff to the defendant does not contain a requirement to terminate the construction contract. The plaintiff should contact the defendant with a specific proposal. What does the plaintiff need to do for the court to accept the statement of claim? File a new claim and wait for the new deadline?

You need to serve the defendant with a new claim demanding termination of the contract. After the period specified in the claim has expired, file an application with the court.

Contact the secretary of the magistrate (phone numbers are on the official website) and find out more.

how to return a statement from court

You need a motion to return the statement of claim or to dismiss the claims.

in court they do not give a judge’s order to return my statement of claim, but they motivate that they sent the return of my claim by mail, wait until it arrives to you by mail. whether such actions of the court are lawful. why in court they didn’t give a definition about the reasons for the return, but they said it would come by mail there and read for what reason the return was made.

Usually the courts do this and send a ruling on the return of the claim by mail. Moreover, during the pandemic, many courts have suspended in-person appointments altogether. All that remains is to wait for the determination at the post office and study it for compliance with the legislation of the Russian Federation.

1. The arbitration court returns the statement of claim if, when considering the issue of accepting the application, it establishes that: 1) the case is not within the jurisdiction of this arbitration court; 2) the paragraph has lost force since October 21, 2009 - Federal Law of July 19, 2009 N 205-FZ; 3) before the ruling on the acceptance of the statement of claim for the proceedings of the arbitration court, the plaintiff received a request to return the statement; 4) the circumstances that served as the basis for leaving the statement of claim without progress have not been eliminated within the period established in the court ruling.

The arbitration court also returns the statement of claim if the request for a deferment, installment payment of the state duty, or a reduction in its amount is rejected.

2. The arbitration court shall issue a ruling on the return of the statement of claim.

The determination indicates the grounds for returning the application and resolves the issue of returning the state duty from the federal budget. 3.

A copy of the ruling on the return of the statement of claim is sent to the plaintiff no later than the next day after the day the ruling was issued or after the expiration of the period established by the court to eliminate the circumstances that served as the basis for leaving the statement without progress, along with the statement and the documents attached to it.

4. The ruling of the arbitration court to return the statement of claim may be appealed.

5. If the ruling is canceled, the statement of claim is considered filed on the day of the initial application to the arbitration court.

Expert opinion

Stepanov Maxim Anatolievich

Legal consultant with 6 years of experience. Specialization: civil law. Extensive experience in drafting contracts.

6. The return of the statement of claim does not prevent the repeated filing of the same claim with the arbitration court in the general manner after the elimination of the circumstances that served as the basis for its return.

Refund of state fees in arbitration proceedings

According to Article 333.17 of the Tax Code of the Russian Federation, a state duty is a fee collected from persons when they apply to state bodies, local government bodies, and officials who are authorized in accordance with the legislative acts of the Russian Federation, acts of the constituent entities of the Russian Federation and regulatory legal acts of local government bodies , for the commission of legally significant actions in relation to these persons.

Payers of the state duty are both individuals and legal entities, except for cases where a person, in accordance with the law, is exempt from paying it (for example, political parties, all-Russian public associations, budget organizations, etc.). Also, the law, namely Chapter 25.3 of the Tax Code of the Russian Federation, defines a list of legally significant actions for which state duty is charged, its amount and payment procedure. One of such actions is an appeal to arbitration courts and courts of general jurisdiction of the Russian Federation.

Payment of the state fee, by virtue of Article 126 of the Arbitration Procedure Code, is a necessary condition for the court to accept the statement of claim for proceedings. However, in practice, situations arise when, for various reasons, it is necessary to return the paid state duty, or part of this amount. An example here is the conclusion by the parties of a settlement agreement, upon reaching which the plaintiff will receive half of the state duty paid by him from the federal budget, which is regulated by subparagraph 3 of paragraph 6 of Article 141 of the Arbitration Procedure Code of the Russian Federation. It is important to note that the paid state fee is not refundable if a settlement is reached in the courts of general jurisdiction (Article 333.40 of the Tax Code of the Russian Federation).

The law establishes four grounds for the return of the state fee paid for consideration of a claim by the court. According to paragraph 1 of Article 333.40 of the Tax Code of the Russian Federation, the amount of the duty is subject to partial or full refund in the event of:

1. 1. payment of state duty in a larger amount than provided for in Chapter 25.3 of the Tax Code of the Russian Federation;
2. 2. return of a statement of claim or complaint;
3. 3. termination of the proceedings or leaving the application without consideration;
4. 4. refusal of persons who have paid the state fee to perform a legally significant action before applying to the arbitration court.

To do this, you must submit a corresponding application to the court that is considering the case. Having checked the presence of the above conditions, the court indicates in the decision the need to return the paid state duty, or makes an appropriate determination. These documents must set out the circumstances that served as the basis for the return of the recovered amount, or part thereof. After this, the payer submits documents to the tax authority at the location of the court in which the case was heard.

When applying, you must submit the following documents:

1. 1. Application for refund of overpaid state duty.
2. 2. A court decision or ruling with reference to the circumstances that served as the basis for the refund of the state duty.
3. 3. Payment document confirming payment of the specified amount. If the state duty is refundable in full, the original document is required, but if it is partially refundable, copies are required.
4. 4. Confirmation of the authority of the person who signed the application.

The refund is made within one month from the date of submission of the specified documents to the tax authority. The application can be filed within three years from the date the court made a decision on the return of the state duty, and if the court did not indicate this in the decision, three years are counted from the date of its payment.

In practice, situations often arise when the defendant repays the debt voluntarily before the court makes a decision. How, in this case, is the issue of the collected duty resolved? Let's consider several options.

Let us assume that the defendant fully satisfied the plaintiff’s demands before accepting the statement of claim for proceedings. In this case, the plaintiff must immediately submit a petition to the court for the return of the statement of claim and the paid amount of the state duty. In this case, the court will return the claim with an attached certificate confirming the return of the state duty from the budget.

In another case, the defendant may pay off the debt voluntarily after the court makes a ruling to accept the statement of claim for proceedings. According to Article 333.40 of the Tax Code of the Russian Federation, in this case the amount of state duty cannot be refunded from the budget. However, this provision contradicts the provisions of the Arbitration Procedure Code of the Russian Federation, which establishes the procedure for distributing legal costs incurred between the parties, including the costs of paying state fees. This contradiction is resolved by Information Letter of the Presidium of the Supreme Arbitration Court dated March 13, 2007 No. 117. This letter indicates that the norm enshrined in Art. 333.40 of the Tax Code of the Russian Federation cannot be considered as excluding the application of the provisions of the Arbitration Procedure Code of the Russian Federation on the distribution of legal costs between persons participating in the case. Thus, if the defendant satisfies the plaintiff’s demands after accepting the claim for proceedings, the court recovers the amount of state duty from the defendant.

A third option is also possible, when the plaintiff’s demands are partially satisfied by the defendant. Here, the further fate of the state duty will depend on the actions of the plaintiff. Let us assume that the plaintiff, knowing that the defendant has made partial payment of the debt, leaves the claims unchanged, that is, does not submit additional statements to the court to change the claims. In this case, the court, having considered the defendant’s arguments in this regard, will satisfy the claim in part and, guided by Art. 110 of the Arbitration Procedure Code of the Russian Federation, will distribute legal costs, which include state fees, between the parties in proportion to the size of the satisfied claims.

Now let’s assume that the plaintiff sent a petition to the court to reduce the claims due to partial satisfaction of the demands. The amount of the overpaid state duty will be returned in the manner described above on the basis of 333.40 of the Tax Code of the Russian Federation, and if the court satisfies the amended claims, the remaining part of the state duty will be recovered from the defendant by virtue of clause 1 of Art. 110 APK.

I would also like to mention another possible option - offset of state duty. According to paragraph 6 of Article 333.40 of the Tax Code of the Russian Federation, the payer has the right to offset the previously paid amount against the state duty for performing a similar action, for example, when filing a statement of claim in another case. The offset is carried out on the basis of the payer’s application to the appropriate court. The list of required documents and deadlines are similar to the deadlines and package of documents for the return of state duty.

Assistant lawyer Dmitry Yakushev. Law Firm Antanta

Commentary on Article 129 of the Arbitration Procedural Code of the Russian Federation

1. The arbitration court returns the statement of claim if the plaintiff fails to comply with a number of conditions. The list of grounds for returning a statement of claim is formulated in the Arbitration Procedure Code of the Russian Federation in an exhaustive manner and is not subject to broad interpretation; it includes:

1) failure to comply with the rules on the jurisdiction of the application to the arbitration court. The Arbitration Procedure Code of the Russian Federation did not reproduce the institution of refusal to accept a statement of claim. At the time of accepting the statement of claim for proceedings, the arbitration court must decide whether the plaintiff correctly determined the jurisdiction of the case.

Providing by the plaintiff in accordance with the requirements of paragraph 9 of Part.

1 tbsp. 126 of the Arbitration Procedure Code of the Russian Federation, extracts from the Unified State Register of Legal Entities or the Unified State Register of Individual Entrepreneurs allow the arbitration court to resolve the issue of both jurisdiction and cognizance of the case.

If the court finds that jurisdiction has been violated, it returns the application. If jurisdiction is violated, it accepts and then terminates the proceedings.

However, the Supreme Arbitration Court of the Russian Federation provided clarification on how the court should proceed in connection with the acceptance of a case outside its jurisdiction. Clause 6 of the Resolution of the Plenum of the Supreme Arbitration Court of the Russian Federation of June 2, 2004

N 10 “On some issues that have arisen in judicial practice when considering cases of administrative offenses” establishes that upon receipt of an application for administrative liability for committing an offense, the consideration of the case is not covered by Part 3 of Art.

23.1 of the Code of Administrative Offenses to the jurisdiction of the arbitration court, the court issues a ruling to return the application as not within the jurisdiction of the arbitration court.

Traditionally, jurisdiction is understood as the property of legal cases, by virtue of which they are subject to resolution by certain jurisdictional authorities. Jurisdiction is the attribution of a case within the jurisdiction of courts (arbitration courts) to the jurisdiction of a specific court at various levels.

Thus, jurisdiction makes it possible to distinguish the competence of an arbitration court from the competence of a court of general jurisdiction or other bodies, and jurisdiction is the powers of one level of the judicial system from the powers of others, as well as the powers of arbitration courts of the same level on a territorial basis. Accordingly, an application for consideration of a non-jurisdictional (i.e.

subject to consideration by another body or a court of general jurisdiction) the case should not be returned to the arbitration court as not subject to jurisdiction (i.e., as not falling within the competence of the arbitration court of this level).

Therefore, the explanation of the Supreme Arbitration Court of the Russian Federation caused justified criticism, since there was a confusion of different concepts: “jurisdiction” and “jurisdiction”.

Moreover, the procedural consequences of returning a statement of claim due to lack of jurisdiction and refusing to accept it are significantly different. Return does not prevent the repeated filing of the same claim, but to another arbitration court in the general manner, after the elimination of the circumstances that served as the basis for its return.

A case that does not have jurisdiction cannot be considered by other arbitration courts. In this regard, not all judges apply paragraph.

6 Resolution of the Plenum of the Supreme Arbitration Court of the Russian Federation dated June 2, 2004 No. 10.

Expert opinion

Stepanov Maxim Anatolievich

Legal consultant with 6 years of experience. Specialization: civil law. Extensive experience in drafting contracts.

If the arbitration court accepted a case beyond its jurisdiction, which was established later, then according to clause 3 of part 2 of art. 39 of the Arbitration Procedure Code of the Russian Federation, the case is subject to transfer to another arbitration court of jurisdiction;

2) receipt from the plaintiff, before the ruling on acceptance of the statement of claim for processing, of a request for its return. In this case, the petition for the return of the statement of claim means that there is practically no statement of claim.

However, a petition for the return of a statement of claim should not be confused with a refusal of a claim, since in the latter case the law provides for other grounds for its satisfaction;

3) failure to eliminate the circumstances that served as the basis for leaving the application without progress within the period established in the ruling of the arbitration court. The Presidium of the Supreme Arbitration Court of the Russian Federation indicated that the applicant must take all measures depending on him so that the necessary documents, as well as actions aimed at eliminating the shortcomings of the statement of claim, are received by the court or the court becomes aware of them before the expiration of the period established by the arbitration court in the ruling about leaving the application without progress (see.

commentary to Art. 128 Arbitration Procedure Code of the Russian Federation).

However, if after the expiration of the period established for eliminating the circumstances that served as the basis for leaving the application without progress, and before issuing a ruling on the return of the statement of claim, the arbitration court becomes aware that the shortcomings of the statement of claim have been eliminated, it must accept the application and initiate proceedings in the case. Thus, the Arbitration Court of

Moscow, by Decree dated December 12, 2005, returned the application of ZAO PFK M. due to failure to provide evidence of payment of the state duty before December 6, 2005, established in the ruling on leaving the statement of claim without progress.

By the decision of the Ninth Arbitration Court of Appeal, the Determination of December 12, 2005 of the court of first instance was left unchanged.

The Federal Antimonopoly Service of the Moscow District overturned these judicial acts, since from the case materials it follows that the court of first instance, at the time it issued the Ruling dated December 12, 2005, to return the application of ZAO PFK M. had the documents submitted by the applicant in pursuance of the ruling to leave the application without progress;

4) rejection of a request for a deferment, installment payment of the state duty or a reduction in its amount.

2. The return of the statement of claim is formalized by a ruling of the arbitration court in the form of a separate judicial act, which indicates the grounds for the return, and also resolves the issue of the return of the paid state duty.

3. A copy of the ruling on the return of the statement of claim is sent to the plaintiff.

If the basis for returning the application was the failure to eliminate deficiencies within the period established by the arbitration court in the ruling on leaving the application without progress, then a copy of the ruling on return is sent to the plaintiff after the expiration of the specified period. In other cases - no later than the next day after the day the ruling was made.

4. The Code under comment provides for the possibility of appealing a ruling to return a statement of claim. The provisions of Part 4 of this article apply to the determination of the return of the counterclaim.

5. Since the ruling to return the statement of claim can be appealed separately from the judicial act that ends the consideration of the case on the merits, the Arbitration Procedure Code of the Russian Federation provides additional guarantees for the plaintiff.

If the ruling to return the statement of claim is canceled, it is considered filed on the day of initial receipt by the arbitration court.

6. Part 6 of the commented article establishes the legal consequences of returning a statement of claim, which significantly distinguish this institution from the institution of refusal to accept a statement of claim.

The return of the application does not prevent the repeated filing of the same claim with the arbitration court in the general manner after the elimination of the circumstances that served as the basis for the return.

Article 129 of the Arbitration Procedure Code of the Russian Federation. Return of the statement of claim (current version)

This basis for returning the statement of claim, included in the Federal Law Code No. 451-FZ, filled an obvious legislative gap (cf., for example, clause 4, part 1, article 135 of the Code of Civil Procedure);

7) if the plaintiff’s request for a deferment, installment payment of the state duty, or a reduction in its amount is refused.

Despite the fact that the list of grounds for returning the statement of claim under the construction of Part 1 of Art. 129 of the APC is exhaustive; judicial practice has supplemented it in a certain way.

Firstly, the Supreme Court of the Russian Federation instructs the courts to check whether the statement of claim filed by an organization for managing rights on a collective basis indicates on whose behalf the claim is made (its own, specific rights holders or an indefinite circle of rights holders). The absence of such an indication should entail leaving the statement of claim without progress, and failure to eliminate such a defect within the period established by the arbitration court, its return.

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See paragraph 18 of the Resolution of the Plenum of the Armed Forces of the Russian Federation dated April 23, 2019 N 10 “On the application of part four of the Civil Code of the Russian Federation.”

Secondly, the Supreme Arbitration Court of the Russian Federation recommended returning the statement of claim (statement) also if the plaintiff (applicant) violates certain rules on jurisdiction. For example, “upon receipt of an application for administrative liability for committing an offense, the consideration of the case of which is not referred to by Part 3 of Article 23.1 of the Code of Administrative Offenses of the Russian Federation under the jurisdiction of the arbitration court, the court issues a ruling to return the application in relation to paragraph 1 of Part 1 of Article 129 of the Arbitration Procedure Code of the Russian Federation.”

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See paragraph 6 of the Resolution of the Plenum of the Supreme Arbitration Court of the Russian Federation dated June 2, 2004 N 10 “On some issues that arose in judicial practice when considering cases of administrative offenses.”

It is clear that the initial reason for such clarifications was that in the arbitration process the institution of refusal to accept a statement of claim was ignored. However, with the addition of the APC Art. 127.1, the need for such a “creative” approach has disappeared, and therefore for all cases when another body (other than a court of general jurisdiction) is competent, a universal rule should apply on refusal to accept an application (at the initiation stage) or on termination of proceedings in the case (at subsequent stages).

Thirdly, it was proposed to use the institution of return when the plaintiff indicates a branch of a legal entity as a defendant. We believe that in such cases the statement of claim should not be returned, but its acceptance should be refused (for more details, see the commentary to Part 1 of Article 127.1 of the APC).

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See question 11 of the recommendations of the NCC at the Federal Antimonopoly Service of the Volga-Vyatka District based on the results of the Council meeting dated February 27, 2008 “On the practice of applying procedural legislation.”

Along with adding to the list of grounds for returning a statement of claim, in arbitration practice it is also possible to identify cases where the inapplicability of the institution of returning a statement of claim is especially emphasized.

Thus, the Supreme Arbitration Court of the Russian Federation indicated that the filing of claims by the consignor, consignee, or owner of a non-public railway track against the carrier outside the time limits provided for in Art. 123 of the Charter of Railway Transport of the Russian Federation, subject to compliance with the procedure for filing claims established by the said Charter and the rules for the transportation of goods, is not a basis for the return of the statement of claim.

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See paragraph 42 of the Resolution of the Plenum of the Supreme Arbitration Court of the Russian Federation dated October 6, 2005 N 30 “On some issues of the practice of applying the Federal Law “Charter of Railway Transport of the Russian Federation”.

The applicant’s omission of the established part 4 of Art. 198 of the APC, the period for challenging a non-normative legal act, decision, actions (inaction) of a state body, local government body, other body, or official cannot be regarded as a basis for returning an application.

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See paragraph 11 of the Recommendations of the NCC at the Federal Antimonopoly Service of the Ural District No. 1/2006 based on the results of the meeting held on December 7 - 08, 2005 in Yekaterinburg, approved. minutes of the meeting of the NCC at the Federal Antimonopoly Service of the Ural District dated February 17, 2006 N 1 (https://fasuo.ru/nauchno-konsultativnyj_sovet/nauchno_konsultativnyi/rekomendatsii_nks_20051207).

The territorial distance of the defendants from the arbitration court to which the statement of claim (application) was sent is not provided for by the rules of the APC as a basis for its return.

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See section V “Return of statements on other grounds” Review of the practice of the Chelyabinsk Region Autonomous Court on issuing rulings on the return of statements of claim (statements, demands, complaints) and the reasons for their cancellation in 2007 (https://www.chelarbitr.ru/Arbitrazhnaja_praktika/Obzory/ Obzory_sudebno_praktffi_Arbitrazhnogo_suda_Cheljabinsko_oblasti/Obzor_praktiki_po_vyneseniju_opredeleni_o_vozvraschenii_iskovyh_zajavleni_v_2007_godu).

“If the circumstances that served as the basis for leaving the statement of claim without progress are eliminated, the arbitration court has no legal grounds for issuing a ruling on the return of the statement.”

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See paragraph 7 of the Review of judicial practice of returning statements of claim (statements) by judges of the Arbitration Court of the Moscow Region in 2005 and the first quarter of 2006 (https://www.arbitr.ru/as/pract/ac_prac/?id_rubric=1) .

2. Part 2 art. 129 of the APC determines the content of the determination to return the statement of claim.

The current APC has normatively established the quite reasonable practice of arbitration courts, when the said definition indicates not only the grounds for returning the statement of claim, but also immediately resolves the issue of returning state duties from the federal budget.

The indication in the ruling on the return of the application of a new circumstance that was not previously indicated in the court ruling as the basis for leaving the application without progress does not comply with the requirements of Art. Art. 128, 129 APC.

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See section 5. III “Return of applications due to failure to eliminate the circumstances that served as the basis for leaving the application without progress” Review of the practice of the Chelyabinsk Region Autonomous Court on issuing rulings on the return of statements of claim (statements, demands, complaints) and the reasons for their cancellation in 2007 (https:// www.chelarbitr.ru/Arbitrazhnaja_praktika/Obzory/Obzory_sudebno_praktiki_Arbitrazhnogo_suda_Cheljabinsko_oblasti/Obzor_praktiki_po_vyneseniju_opredeleni_o_vozvraschenii_iskovyh_zajavleni_v_2007_godu).

The ruling on the return of the statement of claim must be made by the arbitration court within five days from the date of receipt of the statement of claim by the arbitration court (see commentary to Part 1 of Article 127 of the Arbitration Procedure Code).

On the deadline for issuing a ruling on the return of the statement of claim in cases where the statement of claim was previously left without progress, see the commentary to Part 4 of Art. 128 APK.

3. Part 3 art. 129 of the Arbitration Procedure Code has established an extremely short period for sending a copy of the ruling on the return of the statement of claim - one day.

According to the literal interpretation of the commented norm, a copy of this determination is sent only to the plaintiff. At the same time, it is obvious that in cases where the so-called “procedural” plaintiff (the prosecutor and other entities entitled to apply to the arbitration court in accordance with Articles 53, 53.1 of the Arbitration Procedure Code) filed a statement of claim, a copy of the ruling on the return of the claim The application must also be sent to him.

4. The possibility of appealing a determination to return a statement of claim is an important procedural guarantee of the constitutional right to judicial protection.

Who can appeal this determination?

We believe that such persons should include only subjects whose procedural rights are directly affected by the ruling: the plaintiff, a third party making independent claims regarding the subject of the dispute, and the so-called “procedural” plaintiffs (prosecutor and other entities entitled to apply to the arbitration court in accordance with Article 53, 53.1 of the APC).

5. For the plaintiff, the rule that in the event of a cancellation of the ruling to return the statement of claim, the statement of claim is considered filed on the day of the initial application to the arbitration court, in a number of cases can have important substantive consequences (for example, when calculating statutes of limitations - clause 1 Article 203 of the Civil Code, when determining the entity that has the preemptive right to demand fulfillment of the obligation to transfer uncertificated securities - clause 4 of Article 149.2 of the Civil Code, when determining the moment of termination of the guarantee - clause 6 of Article 367 of the Civil Code, etc.).

6. Repeated appeal within the meaning of Part 6 of Art. 129 of the APC is a new independent statement of claim, the issue of acceptance of which will be considered according to the general rules of Chapter. 13 APK.

7. The institution of returning a statement of claim is not applicable to appeals that, from the point of view of procedural law, cannot be qualified as statements of claim (for non-claim proceedings - statements).

Thus, in relation to the procedure for initiating cases of bringing to administrative responsibility and cases of challenging decisions of administrative bodies on bringing to administrative responsibility, the Supreme Arbitration Court of the Russian Federation indicated that “upon receipt of a protocol on an administrative offense and other documents without an application, the court returns them to the administrative body without issuing a ruling in due to the lack of grounds for deciding the issue of initiating proceedings in the arbitration court.”

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See paragraph 5 of the Resolution of the Plenum of the Supreme Arbitration Court of the Russian Federation dated June 2, 2004 N 10 “On some issues that have arisen in judicial practice when considering cases of administrative offenses.”

8. On the return of the statement of claim when accepting a counterclaim, see the commentary to Part 4 of Art. 132 Code of Civil Procedure.

Another comment on Article 129 of the Arbitration Procedure Code of the Russian Federation

1. The arbitration court returns the statement of claim on the grounds expressly established by law, including in the event of failure to eliminate within a timely manner the circumstances that served as grounds for leaving it without movement.

The list of grounds for returning a statement of claim is not subject to broad interpretation; issuing a ruling to return a statement on grounds not provided for by law violates the uniformity in the interpretation and application of the law by arbitration courts.

It should be taken into account that clause 1, part 1, art. 129 of the Arbitration Procedure Code of the Russian Federation as a basis for returning a statement of claim, a statement is considered as indicating not only the lack of jurisdiction, but also the non-jurisdiction of the case to the arbitration court.

See, for example: Resolution of the Presidium of the Supreme Arbitration Court of the Russian Federation dated 03.03.2009 N 14906/08.

Return of the statement of claim, as indicated in Part 6 of Art.

129 of the Arbitration Procedure Code of the Russian Federation does not prevent a repeated application to the arbitration court, however, it should be borne in mind that due to the return of the application, the deadline for applying to the arbitration court may be missed (for example, the period provided for in Part 4 of Art.

198 of the Arbitration Procedure Code of the Russian Federation), which may lead to the inability of the applicant to exercise his right to judicial protection.

Denial of justice is not allowed in paragraph 1 of Art.

6 of the Convention for the Protection of Human Rights and Fundamental Freedoms and contradicts the established practice of the European Court of Human Rights, according to which the principle of international law prohibiting denial of justice is one of the internationally recognized fundamental principles of law (Golder v. United Kingdom, Judgment of 21.02 .1975).

The level of access to justice provided by domestic law must be sufficient to provide a person with a “right of access”, the effectiveness of which requires that the person has a clear and specific opportunity to challenge an action that constitutes an interference with his rights (FE v.

France, Decree of 30.10.1998).

See: Resolution of the Presidium of the Supreme Arbitration Court of the Russian Federation dated October 5, 2010 N 6563/10.

At the same time, the European Court has repeatedly stated that it is not absolute. This right, by its nature, requires government regulation and may be accompanied by restrictions.

Expert opinion

Stepanov Maxim Anatolievich

Legal consultant with 6 years of experience. Specialization: civil law. Extensive experience in drafting contracts.

At the same time, these restrictions must not limit or impair a person's access to court in such a way or to such an extent as to violate the very essence of the right. Such restrictions will not be compatible with paragraph.

1 tbsp. 6 of the Convention unless they pursue a legitimate aim or there is no reasonable proportionality between the means used and the aim pursued.

See: Judgment of the European Court of Human Rights dated December 22, 2009 in the case “Bezymyannaya v. Russian Federation” (N 21851/03).

2. In relation to certain categories of cases, the question of the possibility of returning an application is decided taking into account the special rules established for these categories.

Thus, if in the application and addition to it the applicant indicated his rights and legitimate interests, which, in his opinion, are violated by the contested provision of the normative legal act, the judge has no legal grounds to believe that he did not comply with the requirements for the form and content of the application established by paragraph 3 hours 1 tbsp. 193 of the Arbitration Procedure Code of the Russian Federation, and return it to society.

See: Resolution of the Presidium of the Supreme Arbitration Court of the Russian Federation dated October 4, 2005 N 7445/05.

To determinations made in the framework of insolvency cases, the appeal of which is separate from the judicial act that completes the consideration of the case on the merits (Part 3 of Art.

223 of the Arbitration Procedure Code of the Russian Federation), provided for by the Code and other federal laws governing bankruptcy issues, in relation to Part 4 of Art.

129 of the Code includes determinations on the return of applications for declaring a debtor insolvent (bankrupt).

See: Resolutions of the Presidium of the Supreme Arbitration Court of the Russian Federation dated May 13, 2008 N 95/08, N 17994/07.

In relation to a dispute arising in connection with the failure to fulfill contractual obligations under a foreign economic transaction, the parties to which are legal entities of different states, the issue of returning the application can be resolved based on the interpretation of the provision applicable to the relationship of the parties to an international agreement in conjunction with Art. Art.

247 and 249 of the Arbitration Procedure Code of the Russian Federation. In particular, the fact that the parties to this dispute did not exercise the right to conclude a prorogation agreement (agreement on the choice of a competent court) does not affect the competence of the arbitration courts of the Russian Federation to consider disputes involving foreign legal entities, subject to compliance with the norms of applicable international treaties and national procedural legislation.

See: Resolution of the Presidium of the Supreme Arbitration Court of the Russian Federation dated November 2, 2010 N 6633/10.

Do you have any questions regarding Article 129 of the Arbitration Procedure Code of the Russian Federation?

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Refusal of a claim represents a complete or partial refusal by the plaintiff to protect his right in court. For the plaintiff, after refusal, consequences of a different nature occur; it is especially prohibited to repeatedly go to court with the same demand against the first defendant.

An application for the return of a statement of claim to the arbitration court must be submitted after thinking everything through well, so as not to lose the opportunity to defend your position in court.

What you need to know when filing a claim with the Arbitration Court

A. S. Kenzhikhanov,

Specialist of the Department for Generalization of Judicial Arbitration Practice

Claim materials for the arbitration court are often forced to be prepared by persons who do not have extensive knowledge of jurisprudence. Sometimes the plaintiff simply does not have the opportunity to attract specialists for this work. Negligence of the parties to the arbitration process leads either to the return of the statement of claim or to the refusal to satisfy the claims.

If you are planning to go to arbitration court, you should pay attention to the following. On September 1, 2002, the new Arbitration Procedural Code of the Russian Federation (hereinafter referred to as the Arbitration Procedure Code of the Russian Federation) dated July 24, 2002 No. 95-FZ came into force. In comparison with the previous Arbitration Procedure Code of the Russian Federation, some chapters and sections remained virtually untouched (except for the numbering of individual articles). Others have undergone significant changes.

BRINGING A CLAIM

In the Arbitration Procedure Code of the Russian Federation, Chapter 13 is devoted to filing a claim (in the old Arbitration Procedure Code of the Russian Federation it was Chapter 14), which is called: “Filing a claim.” The form and content of the statement of claim are determined by Article 125 of the Arbitration Procedure Code of the Russian Federation.

A statement of claim (now simply a statement) is submitted to the arbitration court in writing. It is signed by the plaintiff or his representative. The requirements for the content of the application have not changed in comparison with those previously in force in the new Arbitration Procedure Code of the Russian Federation.

The application must indicate:

– name of the arbitration court to which the application is submitted;

– names of persons participating in the case and their postal addresses;

– the price of the claim, if the claim is subject to assessment;

– the circumstances on which the claims are based;

– evidence confirming the grounds of claim;

– calculation of the collected or disputed amount;

– the plaintiff’s claims with reference to laws and other regulatory legal acts, and when a claim is brought against several defendants, claims against each of them;

– information about compliance with the pre-trial (claim) procedure for resolving a dispute with the defendant, when this is provided for by federal law for this category of disputes or by agreement;

– list of attached documents.

The application shall also indicate other information if it is necessary for the correct resolution of the dispute, as well as the plaintiff’s petitions.

According to Article 126 of the Arbitration Procedure Code of the Russian Federation (formerly Article 103 of the Arbitration Procedure Code of the Russian Federation), when filing a claim, the plaintiff is obliged to send to other persons participating in the case copies of the statement of claim and attach to it documents that they do not have. The statement of claim shall be accompanied by documents confirming:

– payment of state duty in the established manner and amount;

– sending copies of the statement of claim and documents attached to it<*>;

– compliance with the pre-trial (claim) procedure for resolving a dispute with the defendant, when this is provided for by federal law for this category of disputes or by agreement;

– the circumstances on which the claims are based.

EXAMPLE.

Name of the body that made the decision: Inspectorate of the Ministry of Taxes and Taxes of the Russian Federation for the Leninsky district of the city of Khabarovsk

Location: Khabarovsk city, Kommunisticheskaya street, building 5

STATEMENT on declaring illegal decision No. 17 of November 30, 2003 on bringing to tax liability for committing a tax offense

The Inspectorate of the Ministry of Taxes of the Russian Federation for the Leninsky District of the city of Khabarovsk (hereinafter referred to as the Tax Inspectorate) conducted a desk tax audit of the accounting statements and calculations of payments due to the budget for income tax of 000 "Simplex" (hereinafter referred to as the company) for 9 months of 2003.

Based on the results of this audit, the tax inspectorate made decision No. 17 of November 30, 2003 on bringing to tax liability for committing a tax offense. In accordance with this decision, the company is charged to the budget an income tax in the amount of 5,000 rubles, and a penalty for late payment of income tax in the amount of 416.67 rubles. In addition, the company was brought to tax liability under paragraph 1 of Article 122 of the Tax Code of the Russian Federation in the form of a fine in the amount of 1,000 rubles.

We consider this decision to be illegal, since the specified amount of tax was paid by the company to the budget on October 31, 2003 by payment order No. 125, the bank withdrew the money from the company’s account and transferred it to the appropriate budget account. We believe that this decision violated the interests of the enterprise as a taxpayer, since according to Article 45 of the Tax Code of the Russian Federation, for a bona fide taxpayer, the obligation to pay tax is considered fulfilled from the moment the payment order is presented to the bank.

Taking into account the above, we ask that the decision of the Inspectorate of the Ministry of Taxes and Taxes of the Russian Federation for the Leninsky District of the city of Khabarovsk No. 17 of November 30, 2003 be declared illegal.

Attached:

1) documents confirming payment of the state duty;

2) a copy of the certificate of state registration as a legal entity;

3) a copy of the minutes of the meeting of founders dated February 10, 2003 (on the appointment of a director);

4) a copy of decision No. 17 of November 30, 2003 on bringing to tax liability for committing a tax offense:

5) a copy of the desk tax audit report dated November 1, 2003;

6) a copy of the objections to the desk audit report dated November 14, 2003;

7) copy of payment order No. 125 dated October 31, 2003.

Director of Simplex LLC Sevastyanov V.P.

GROUNDS FOR RETURNING THE APPLICATION

Paragraph 1 of Article 129 of the Arbitration Procedure Code of the Russian Federation contains a list of grounds for returning the statement of claim and the documents attached to it. It is worth noting that the list of grounds on which a statement of claim can be returned has been significantly reduced . Previously, paragraph 1 of Article 108 of the Arbitration Procedure Code of the Russian Federation provided for nine such grounds<*>.

_____________ <*> Previously, in addition to the currently existing grounds (excluding the last), there were six more: - if the form and content of the statement of claim are not followed, - if the statement of claim is not signed or signed by a person whose official position is not indicated, - if evidence of direction to others is not provided persons participating in the case, copies of the statement of claim - if documents confirming payment of the state duty in the established manner and amount are not submitted, - if the plaintiff has not submitted documents confirming compliance with the pre-trial (claims procedure for resolving the dispute (when provided for by law or contract), – if evidence of an application to a bank or other credit institution to collect a debt from the defendant is not provided, when, according to the law or agreement, it should be received through the bank. (Editor’s note).

There are now four grounds for returning a statement of claim, the list of which is exhaustive:

– if the case is beyond the jurisdiction of this arbitration court;

– if one statement of claim combines several claims against one or more defendants, when these claims are not related to each other;

– if, before the ruling on acceptance of the statement of claim for proceedings, the plaintiff received an application to return the statement of claim;

– if the circumstances that served as the basis for leaving the statement of claim without progress are not eliminated within the period established in the court ruling.

The judge issues a ruling on the return of the statement of claim.

The determination to return the statement of claim may be appealed. In case of cancellation of the ruling, the statement of claim is considered filed on the day of the initial application to the arbitration court. The return of the statement of claim does not prevent the second filing with the arbitration court in the general manner after the violations have been eliminated.

PAYMENT OF STATE FEES

When deciding whether to accept an application, the arbitration court must check whether the amount of the state duty corresponds to the amount established by paragraph 2 of Article 4 of the Law of the Russian Federation of December 9, 1991 “On State Duty.”

According to the letter of the Supreme Arbitration Court of the Russian Federation dated October 18, 2001 No. S5-7/up-1077, when arbitration courts accept statements of claim, confirmation of payment of the state duty will be:

– settlement documents containing a stamp and calendar stamp of the date of their transfer to the personal account;

– an extract from the client’s personal account, which reflects all transactions performed.

By Instruction No. 897-U dated January 15, 2001, the Central Bank of the Russian Federation invalidated its letter No. 22-2-1/059 dated August 9, 1993, obliging banks to make a note about its transfer on the front or back of a copy of a payment order for payment of the state duty.

Sometimes the payment of the state fee in the established manner and amount is made for the plaintiff (applicant) by another person . In this case, the arbitration court must proceed from the fact that the state duty has actually been paid and credited to the federal budget. Consequently, there are no grounds for returning the statement of claim on the grounds that the state fee was paid by an improper person.

A deferment or installment payment of the state duty, or a reduction in its amount, is carried out at the written request of the interested party. The petition may be stated in the statement of claim or a separate statement attached to the claim. A petition submitted before filing a statement of claim is returned by the arbitration court without consideration.

The petition must provide appropriate justifications with the attachment of documents indicating that the property status of the interested party does not allow it to pay the state fee in the established amount when filing a statement of claim.

Documents establishing the property status of the interested party include:

– a list of settlement and other accounts, names and addresses of banks and other credit institutions in which these accounts are opened (including accounts of branches and representative offices of a legal entity – an interested party), confirmed by the tax authority;

– data confirmed by the bank (banks) on the absence of funds in the corresponding account (accounts) in the amount necessary to pay the state duty, as well as on the total amount of debt of the owner of the account (accounts) under writs of execution and payment documents. Documents on the funds in the account(s) are attached to the application to reduce the amount of the state fee.

The arbitration court cannot, at its discretion, refuse to defer or installment payment of the state duty and reduce its amount if there are objective grounds for satisfying the request.

ABOUT LEAVING THE APPLICATION WITHOUT MOVEMENT

According to the new Arbitration Procedure Code of the Russian Federation, the absence of documents confirming payment of the state duty is not grounds for returning the statement of claim . In this case, the statement of claim is left without progress. In the practice of the Arbitration Court of the Khabarovsk Territory, the absence of documents on payment of state duty is a typical mistake when filing claims.

Let me give you a few examples.
The closed joint stock company filed a claim with the Arbitration Court against the Inspectorate of Taxation of the Russian Federation for the city of Nikolaevsk-on-Amur to invalidate the decision of the Inspectorate of Taxation of the Russian Federation. The plaintiff did not pay the state duty when filing the claim, there is no petition for deferment of the state duty and, accordingly, there are no documents confirming his difficult financial situation and evidence of the lack of funds in current accounts.

The organization filed a claim with the Arbitration Court against the Tax Inspectorate of the Russian Federation for the Central District of Khabarovsk to invalidate its decision; the statement of claim was accompanied by a request to defer the payment of the state duty due to the difficult financial situation and lack of funds. At the same time, certificates from two banks about open accounts and their balances are presented.

For claims for recognition of a non-normative act of state bodies, the state fee is 1,000 rubles. As can be seen from a certificate from one bank, the balance of funds in the organization’s accounts is 1,720 rubles. 80 kop. and US$11.36. Consequently, the plaintiff had the funds to pay the state fee in the prescribed amount

Copyright © “Arbitration Tax Practice”, 2003, No. 3. — — — — — — — — — — — — — — — — — — — — — — — — — — — — — — — — — — — — — — — — — — — — — — — — Indexes 81213 and 80214 according to the catalog “Newspapers, Magazines” (Rospechat). Subscribe at any post office. Internet subscription: www.nalogi.com.ru/Russia.html — — — — — — — — — — — — — — — — — — — — — — — — — — — — — — — — — — — — — — — — — — — — — — — —

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:

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

Arbitration Procedural Code N 95-FZ | Article 129 of the Arbitration Procedure Code of the Russian Federation

1. The rights of the plaintiff referred to in this article are also enjoyed by the prosecutor who filed a claim in court to invalidate transactions (applying the consequences of the invalidity of a void transaction) made by state authorities of the Russian Federation, state authorities of the constituent entities of the Russian Federation, bodies local self-government, state and municipal unitary enterprises, government institutions, as well as legal entities in the authorized capital (fund) of which there is a share of participation of the Russian Federation, a share of participation of constituent entities of the Russian Federation, a share of participation of municipalities. Accordingly, the arbitration court has the right to return, at the request of the prosecutor, his statement of claim if the petition was received before the ruling on accepting the statement of claim for proceedings was made.

2. Set out in the commentary. Article the list of grounds for returning a statement of claim is exhaustive and is not subject to broad interpretation.

3. An application for declaring a debtor bankrupt is not subject to consideration in an arbitration court when the claims against the debtor - a legal entity in the aggregate amount to less than one hundred thousand rubles, and to a debtor-citizen - less than ten thousand rubles or the period during which these claims are not repaid, did not exceed three months from the date on which they should have been executed, unless otherwise provided by the Federal Law “On Insolvency (Bankruptcy)” (Part 2 of Article 33 of the Federal Law “On Insolvency (Bankruptcy)".

4. The grounds formulated here for returning the statement of claim without consideration must be applied by the court, regardless of which of the proper participants in the arbitration process filed the statement of claim.

5. The judge does not have the right to return the statement of claim on the grounds of non-attachment of documents that are evidence, since, according to Art. Art. 65, 66, 135, part 5 art. 158 of the Arbitration Procedure Code of the Russian Federation and other articles, the plaintiff can present them, and the court can offer to present them before the end of the trial.

6. After the statement of claim and the documents attached to it are returned to the plaintiff (applicant), the original of the judge’s ruling and a copy of the covering letter about the return of the statement and the documents attached to it remain in court.

7. A statement of claim, initial and counter, a statement of a third party making independent claims on the subject of a dispute in an already begun process, must be paid with a state fee.

8. If provided for in clauses 2 and 4, part 1 comment. articles of the basis for the return of the statement of claim are identified by the arbitration court after accepting the statement of claim for proceedings, the case is subject to consideration on the merits.

9. About the state duty, see the commentary to Art. 102 of the Arbitration Procedure Code of the Russian Federation.

10. See also commentary to Art. Art. 4, 50, 52, 59, 93, 104, 111, 125, 130, 148, 157, 158, 188, 203, 204, 217, 221 Arbitration Procedure Code of the Russian Federation.

Actions of the court upon receipt

Having received from the plaintiff a withdrawn statement or an oral petition for refusal, the court must note this fact in the protocol and do the following:

• begins its consideration;
• the legality of the grounds is determined;
• absence of violations of the interests of third parties if it is adopted;
• after examining the petition or application, the court makes a decision to accept or reject the claim of the party to the proceeding.

When the refusal is submitted by a representative, the bailiffs must check the indication and the existence of the power of attorney.

Refund of state duty

In case of refusal of the claim of the arbitration process, the state fee is returned to the plaintiff, unless the refusal was caused by the satisfaction of the demands of the defendant. It is possible to collect a state fee in the case where the defendant satisfied the requirements before the court staff accepted the petition for revocation, if one was received, but was not assigned for consideration.

REFERENCE – the state fee is collected by the bailiffs from the defendant.

In the practice of arbitration courts, lawyers are not interested in the reasons for filing a refusal, and in order to return the state fee, it is enough to go to court with the appropriate application/petition, as well as to obtain a determination and submit an application for the return of funds to the tax service department.

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.

Expert opinion

Stepanov Maxim Anatolievich

Legal consultant with 6 years of experience. Specialization: civil law. Extensive experience in drafting contracts.

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.

The main nuances of drawing up a statement of claim for the return of funds

First of all, it is necessary to pay attention to the structure of the statement of claim. And she is typical! That is, in the upper right corner, as a “header”, the first line includes the name of the judicial body that will consider the claim. The second and third lines are information about the plaintiff and defendant. Fourth – the cost of the claim!

Next, a heading is made (as in any other document) - Statement of Claim for the return of funds. And after that the whole essence of the problem is described!

In the main text of your statement of claim for the return of funds, you must briefly, concisely, but with all factual details:

• The circumstances of the emergence of financial relations with the defendant;
• How exactly the defendant violated his obligations to you;
• Bringing specific articles from the law that confirm the fact of violation of rights by the defendant before you and, in fact, the reasonableness of the current statement of claim for the return of funds;
• Next, you indicate specific requirements for resolving the situation.

The final part of the claim lists the documents that are attached to the application and which are the evidence base for your claims!

Please note that it may be necessary to draw up a statement of claim for the return of funds as a result of completely different formats of relations between you (the plaintiff) and the defendant! You should pay special attention to this feature!