The Supreme Court recalled the procedure for accepting and considering counterclaims

What is it, types

A counterclaim is an independent substantive legal claim that the defendant presents to the plaintiff within the framework of a civil or arbitration case already being considered by the court, initiated on the basis of the original claim, for joint consideration and adoption of an adequate decision.

At their core, all counterclaims can be divided into two large groups:

• The first group includes claims that refute the conditions presented in the primary claim. Such claims may result in the complete or partial exclusion of any rights held by the plaintiff or the resolution of the dispute by means of a set-off. As a rule, offset is resorted to when considering claims relating to the material sphere or commodity-monetary relations
• The second group includes counterclaims that do not entail refutation. Such demands may be put forward in order to resolve a controversial situation as quickly as possible, or vice versa, to delay the legal process for some reason.

In what cases is it served?

A counterclaim is filed by the defendant in the original claim or by a person officially entitled to represent and defend the interests of the defendant.

Official representatives may be:

• lawyers and advocates
• other persons who have a notarized power of attorney from the defendant

When can you file counterclaims? Relevant claims are accepted:

• at the stage of preparation for the trial. This option is considered the most ideal, since the parties have time to eliminate any shortcomings or collect additional evidence of guilt or innocence
• at the preliminary conversation. Before the start of each trial, the judge conducts a preliminary conversation in order to resolve the controversial issue pre-trial
• at the beginning of the trial. As a rule, filing a counterclaim in court leads to the adjournment of the hearing to the next day. Additional time is required for the court to consider the issue and for the plaintiff, who is now additionally a defendant, to collect evidence and refutations

A counterclaim will be accepted for consideration if the following conditions are met:

• the claims brought by the defendant fully or partially affect the claims of the original applicant
• the document is drawn up in such a way that, if reviewed and approved, the plaintiff’s initial claims may be excluded partially or in full
• a relationship has been established between initial and response requirements, which can contribute to a faster solution to the problem
• the counterclaim is presented to the plaintiff and does not in any way affect third parties
• a counterclaim is filed by the person who is the defendant. Other parties to the process do not have the right to file responses to the claim.

Procedure for considering a counterclaim

There are many similarities between the initial and “secondary” claims in terms of format. But there is also a difference in terms of procedural issues. Preparing a lawsuit from a defendant does not require as much preparation as a lawsuit from a plaintiff.

It is easier to file a counterclaim simply because the rules of jurisdiction do not apply to it. In practice, the following algorithm for submitting claims from the guilty party has developed:

• at the place of residence of this person;
• to the same court and to the same judge.

The document is submitted on behalf of, as well as at the initiative of, the defendant. Other participants in the court session are not granted this right. If it is impossible to do this in person, representation of interests is allowed (Article 54 of the Code of Civil Procedure).

The defendant may present his claims at any stage of the proceedings. From the moment a citizen is notified of the conduct of a case “against him” until the judicial resolution of the situation. Both claims are being considered simultaneously.

The defendant should not use his claim as “pressure” on the court, at the last moment announcing claims against the plaintiff. You need to understand that with a counterclaim in a civil case, new, sometimes very significant circumstances appear that require analysis and comparison of facts. This could radically change the picture of what happened. Therefore, you need to submit claims as early as possible:

• during the preparation period for the meeting, which is ideal;
• at a preliminary conversation between the judge and the parties to the trial;
• at the very beginning of the trial. However, here, with a high degree of probability, the hearing will be postponed to another day, since the plaintiff-“defendant” now also needs to look for counter-arguments in his defense.

The defendant asserts his claims against the plaintiff during the main case, thereby expanding the range of disputed issues. Therefore, the counterclaim must be based on three points, without which the judge cannot issue a statement. Within the meaning of Art. 138 of the Code of Civil Procedure, counter-argumentation must provide for the following:

1. The second document is interconnected with the first. Their joint resolution will speed up the decision-making process on the main dispute and contribute to the optimal summary of the court.
2. The claims raised cover the issues of the original claim and are aimed at offsetting the claims of the primary plaintiff.
3. Satisfaction of the counterclaim excludes a positive decision on the main document in whole or in part.

A lawsuit is not a work of fiction. Basic information about the essence of the dispute is indicated:

• with concise wording;
• without emotional coloring;
• excluding errors, corrections;
• not forgetting the taboo on knowingly false facts and insults. Remember - this is fraught.

The form of filing a counterclaim by the defendant will differ slightly from the initial application. Firstly, this is the “header” of the document. Here, the clarification “counter” is added to the main heading “statement of claim”. And the second point: the appeal begins with information about the plaintiff’s primary claim.

The right to file a counterclaim is retained by the defendant at all stages of the trial preceding the moment the court makes a final decision. That is, a counterclaim can be filed even immediately before the end of the process, after the judges leave for a meeting before making a decision. In such circumstances, the judge will be forced to order the resumption of the proceedings, at which point the defendant will have the opportunity to make counterclaims against the plaintiff.

Counterclaim

The defendant may file this type of claim personally or through an authorized representative with appropriate authority. The list of powers that the defendant grants to his legal representative is specified in the body of the agreement concluded between them.

Counterclaim

Where are considered

A party to a case submits a counterclaim in a civil proceeding within the framework of an already existing case - to the judge who is considering the original claim (Part 2 of Article 31 of the Code of Civil Procedure of the Russian Federation).

If the legal proceedings are before the magistrate, and the counterclaims are within the jurisdiction of the district court, it is still necessary to send the claim to the magistrates. If they accept the documents, they will transfer the case for consideration according to jurisdiction (Part 3 of Article 23 of the Code of Civil Procedure of the Russian Federation).

Send the paper document by mail or submit it to the office. To do this, it is recommended that you familiarize yourself with the rules for submitting documents, which are published on the website of the judicial authority.

For the electronic version, the general procedure applies - submission through your personal account on the website of the State Automated System "Justice".

There is an established procedure for filing a counterclaim in a civil case, which must be followed. So, the judge will accept it only if (Article 138 of the Code of Civil Procedure of the Russian Federation) a number of requirements are met.

1. Such a claim is aimed at offsetting the original claim. For example, the plaintiff asks to recover a penalty for late payment for work, and the contractor presents a penalty for the delay in completing repairs. If the counterparty has already filed a statement of claim, the other party has the right to terminate its obligation by offset only by filing its own claim within the framework of the already initiated legal proceedings (see the position of the RF Armed Forces, the Supreme Arbitration Court of the Russian Federation). Other conditions required for credit must also be met.
2. Satisfaction of the counterclaim and the original claim at the same time is permitted only in part, but not in full. For example, judges often side with citizens who have received a loan in disputes with banks, declaring clauses in contracts invalid and reducing the amount of debt.
3. The claims are interrelated and their joint consideration will lead to a prompt and fair consideration of the case.

When establishing a pre-trial procedure for resolving a dispute, the judicial body will issue an example of a claim only if it is complied with. This conclusion follows from the interpretation of Art. 137 Code of Civil Procedure. In the absence of evidence of compliance with this procedure in the package of documents, the judicial authority has the right to return the counterclaim on the basis of clause 1 of part 1 of Art. 135 of the Code of Civil Procedure of the Russian Federation (Appeal ruling of the Novgorod Regional Court dated May 31, 2017 in case No. 33-1142/2017).

The Code of Civil Procedure of the Russian Federation does not specifically indicate how to write a counterclaim, since the rules for its preparation are standard for claims. The general rules established in Art. 137 Code of Civil Procedure of the Russian Federation. There are also specific features: the title of the document must indicate that it is being filed as part of another case and to the original plaintiff. It is worth indicating the case number and the name of the judge.

Include in the claim the information provided for in Part 2 of Art. 131 Code of Civil Procedure of the Russian Federation. We also recommend indicating what the conditions are for filing a counterclaim.

The signature and date on the form are required. A representative is recognized as authorized to take this action only if it is expressly stipulated in his power of attorney (Part 4 of Article 131 of the Code of Civil Procedure of the Russian Federation).

Procedure and rules for presentation

A counterclaim is filed in accordance with the rules provided for by the Civil Procedure Code. Article 137 of the document establishes that filing a counterclaim is permissible at any stage of the consideration of a court case, up to the issuance of a court decision.

When filing a counterclaim, the following rules must be observed:

1. A counterclaim is filed in a court of general jurisdiction or in arbitration according to the rules of jurisdiction that are provided for by the Civil Procedure Code and the Arbitration Procedure Code of the Russian Federation and at the place of consideration of the main claim. The case will be examined and subsequently decided by the judge who accepted the original claim.
2. The claim is filed in person at the court secretariat, at the court secretariat through a legal representative who has a notarized power of attorney from the defendant for the right to represent the latter’s interests, or by mail (sent by registered mail with acknowledgment of receipt and inventory)
3. Be careful when preparing your application. A counterclaim may be rejected if:

• the applicant filed a claim without complying with established legal norms
• the necessary documents predetermining the validity of the claim were not submitted
• the powers of the court do not apply to cases of this category or the rule of jurisdiction is not observed
• the claim is not signed, is drawn up with errors, etc.

Rules and procedure for filing a counterclaim in civil proceedings

The rules for filing a counterclaim are regulated by the relevant procedural code depending on the original claim (civil procedural code - CPC, arbitration procedural code - APC, code of administrative proceedings - CAS). The person who is the defendant in the initial claim has the right to file a counterclaim at any stage of the trial until the court makes a decision on the plaintiff’s initial claims.

Please note: in order to file a counterclaim, the conditions stipulated by the code must be met, namely, the consideration of the counterclaim must be interconnected with the consideration of the plaintiff's original claims. If this condition is not met, then an independent claim should be filed.

The conditions for substantiating a counterclaim in civil proceedings are specified in Article 138 of the Code of Civil Procedure. You can file a lawsuit according to the general rules of jurisdiction and jurisdiction. The judge is obliged to make a ruling on accepting the counterclaim for proceedings, or on leaving it without movement or consideration. Refusal to accept a counterclaim does not deprive the defendant of the right to defend himself, but to do this he will have to present an independent statement of claim.

The general rules for filing an application are established in Article 131 of the Code of Civil Procedure. The same rules apply to counterclaims. When preparing documents you must indicate:

• Full name (name) and address of the Plaintiff
• Full name (name) and address of the Defendant
• The judicial authority where the case is heard
• Subject of dispute
• Justification of your requirements
• Circumstances of the case and evidence
• Requirements
• Applications

Please note: the satisfaction of the counterclaim must result in a partial or complete denial of the claims specified in the initial statement.

Prices are presented for reference. Check for discounts and current promotions. When ordering several services at the same time, as well as for regular customers, special conditions may be provided.

Regardless of their role in the trial, its participants are endowed with equal rights. Both the defendant and the plaintiff can present evidence, send statements, petitions, and justify the contested actions. But it is important for the defendant to protect himself in ways permitted by law. A well-thought-out counterclaim in civil proceedings will provide good support.

What does this legal form essentially represent? Documented claims against the defendant from the plaintiff, raised during the initial proceedings.

The procedure for preparing a counterclaim is regulated by the rules for ordinary claims, as well as special requirements of the Civil Code and the Code of Civil Procedure of the Russian Federation.

Special conditions for drawing up a document are contained in Art. 137-138 Code of Civil Procedure of the Russian Federation, general - Art. 131-132 of this law. In controversial situations, the judge is also guided by Resolution of the Plenum of the Supreme Court of the Russian Federation No. 13 of June 26, 2008.

Payment of state duty

When filing a counterclaim, you are also required to pay a state fee, the amount of which is established by Article 333.19 of the Tax Code of the Russian Federation.

In 2021, the fee is:

1. For cases of a non-property nature or matters of a property nature, but not subject to assessment:

• for individuals – 300 rubles
• for legal entities – 6,000 rubles

1. For property matters, depending on the assessment:

• up to 20,000 rubles – 4 percent of the claim price, but not less than 400 rubles
• from 20,001 rubles to 100,000 rubles – 800 rubles plus 3 percent of the amount exceeding 20,000 rubles
• from 100,001 rubles to 200,000 rubles – 3,200 rubles plus 2 percent of the amount exceeding 100,000 rubles
• from 200,001 rubles to 1,000,000 rubles – 5,200 rubles plus 1 percent of the amount exceeding 200,000 rubles
• over 1,000,000 rubles – 13,200 rubles plus 0.5 percent of the amount exceeding 1,000,000 rubles, but not more than 60,000 rubles

Payment of the state duty is made in any available way. Payment details can be found on the official website of the court or at the secretariat.

Sample claim

The statement of claim, regardless of the type, is drawn up in accordance with the requirements established by Articles 131 and 132 of the Civil Procedure Code.

The statement of claim must indicate:

• name of the court to which the application is filed
• name of the plaintiff, his place of residence. If the plaintiff is an organization, its address. Name of the representative and his address, if the application is submitted by a representative
• the name of the defendant, his place of residence or, if the defendant is an organization, its location
• details of the original claim
• what is the violation or threat of violation of the rights, freedoms or legitimate interests of the plaintiff and his demands
• circumstances on which the plaintiff bases his claims, and evidence confirming these circumstances
• the price of the claim, if it is subject to assessment, as well as the calculation of the collected or disputed amounts of money
• information on compliance with the pre-trial procedure for contacting the defendant, if established by federal law
• information about the actions taken by the party (parties) aimed at reconciliation, if such actions were taken
• list of documents attached to the application

Any statement of claim must be supplemented with the following package of documents:

• a receipt confirming payment of the state duty
• notarized power of attorney, if the counterclaim is filed by a legal representative
• documents that can be accepted by the court as evidence of the claims made
• notifications of delivery or receipts for payment of postage with a copy of the statement of claim
• documents that can confirm the pre-trial settlement of the dispute if it is necessary to comply with this condition
• documents confirming calculations of the amount of claims

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By allowing for the possibility of counterclaims being presented and considered in court proceedings, the law eliminates the possibility of contradictory decisions being made. At the same time, filing a counterclaim ensures a balance between the rights of the plaintiff and the defendant.

The latter gets the opportunity not only to defend his position in court based on the content and scope of the plaintiff’s demands, but also to change the course of the trial, expanding the scope of the latter by including additional circumstances. Based on the requirement to carry out legal proceedings on the basis of adversarial and equal rights of the parties and allowing for the possibility of the existence of legal relations related to those brought before the court, the legal consequences of which largely depend on the decision made by the court, procedural legislation, among the elements of protecting the rights and legitimate interests of the defendant, provides for the filing of a counterclaim claim. If you want to competently draw up a statement of claim and go to court in a timely manner, we will help you. Our phones: (495) 790-54-47. A counterclaim, by its legal nature, is not only part of the defense tactics chosen by the defendant in the process, but also at the same time serves the purposes of objectivity and timeliness of consideration of the case on the merits, eliminating judicial red tape and bureaucracy in the way of realizing the right of citizens to judicial protection.

In its form and content, the counterclaim is no different from the main claim. However, in practice there are regularly difficulties with its preparation and submission. Often, people who are not prepared and do not know the intricacies of the judicial process equate a counterclaim with an objection or response to a statement of claim, the presentation of which is charged to the defendant. A typical mistake is also the opinion that it is permissible to file a counterclaim immediately after considering the main one, while basing your claims on the court’s findings. In this case, there is a substitution of concepts, where a counterclaim is identified with a complaint against a decision of the court of first instance. In order to individualize the counterclaim, give it an individual character, emphasizing its status as the basis for the emergence of independent legal relations, as well as forming the procedure for filing it, the procedural law introduces a number of requirements. The general meaning of the latter is to give the defendant the absolute right to bring a counterclaim against the plaintiff for joint consideration with the original claim, the implementation of which must take place until the court makes a decision. The above allows us to note that the right to file a counterclaim belongs exclusively to the defendant, which is quite logical. In practice, such a change in the procedural status of the persons involved in the case causes certain difficulties in drawing up a counterclaim. In the latter, the defendant plays the role of plaintiff, while the main plaintiff becomes the defendant, and in accordance with this, a counterclaim is drawn up. Redistribution of roles in the judicial process in the event of a counterclaim inevitably entails a change in the procedural rights and obligations of the parties. According to the letter of the law, a counterclaim must be brought according to the general rules for filing a claim. The exception is the rule on jurisdiction. Accordingly, the counterclaim indicates the circumstances on which the plaintiff bases his claims, and evidence confirming these circumstances, in which a violation of his rights and legitimate interests was expressed or a threat thereof was created. Those documents that have already been the subject of judicial review must also be attached to the counterclaim. A state fee is also paid for filing a counterclaim. The court, accepting a counterclaim for its consideration, is obliged, in agreement with the parties, to decide to postpone the trial and provide the persons participating in the case with time for appropriate preparation. The moment of filing a counterclaim is essential. By virtue of a direct legislative clause, its presentation is allowed before the court makes a decision. At the same time, it is necessary to distinguish between the concepts of making a decision and the entry into force of a decision. Speaking about making a decision, it should be borne in mind that the latter is made by the court in the deliberation room and, therefore, filing a counterclaim is permissible before the court leaves the deliberation room. Therefore, filing a counterclaim after the announcement of the court decision, despite the fact that the latter has not entered into legal force, is unacceptable. At the same time, due to the stated legislative structure, the defendant retains the right to file a counterclaim if the court makes a ruling to leave the claim without consideration or a ruling to terminate the proceedings. The court accepts a counterclaim provided that the counterclaim is aimed at offsetting the original claim, the satisfaction of the counterclaim excludes the satisfaction of the original claim in whole or in part, there is a mutual connection between the counterclaim and the initial claim and their joint consideration will lead to a faster and more correct resolution of disputes. Failure to comply with at least one of these conditions entails a court ruling refusing to accept the counterclaim. The ruling made must be motivated and can be appealed in the procedural manner established by law. After accepting a counterclaim, the case is reviewed from the very beginning. Do you need a good lawyer? Our lawyers will help you competently draw up a statement of claim. Call: (495) 790-54-47. Petrov Mikhail Igorevich © IOO “Legal Protection”