In civil and arbitration proceedings, the parties to the case are mainly the plaintiff and the defendant. The defendant is the person to whom a demand is made for something (for example, to perform an action or to refuse to act). The defendant may be a proper or improper person in a court hearing. In order to act as a defendant in court hearings and defend his rights in a particular case, a person must be recognized as appropriate, otherwise, they can replace him with an appropriate defendant or attract a second defendant if the replacement refuses.

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Determining the proper defendant

An improper defendant is a person who is not liable for the claim; he should not answer and fulfill the requirements of the statement of claim. The proper defendant in the case can be identified using the documents provided by the plaintiff, on the basis of which it will be clear that this person should be held liable in the case.

Depending on the case to be considered, various documents are presented, for example, if it is a family dispute, then as evidence you can provide the child’s birth certificate, where the father is included, or a marriage certificate. If this is a dispute between companies, for example, about debt collection, then you can provide a reconciliation report, letters of guarantee, contracts, agreements, etc.

The main thing is that all documents confirm the fact that the defendant in the case must be the person indicated in these documents.

Legislation

The procedure for replacing the defendant is regulated by the Civil Procedure Code. It is on the basis of this legislation that the procedure for recognizing the defendant as improper is carried out. At the same time, in this legal act there is no clear concept of who is meant by such a defendant. The main basis for recognizing it as such is the presence of facts confirming the absence of a connection between the actions or inaction of the defendant, as well as the violation of rights that occurred.

Accordingly, this decision remains with the judge and the participants in the case themselves. If one of the parties, when preparing the case for the trial or already during it, discovers for himself the fact that the party is inappropriate and it will not be possible to hold him accountable, then he has the right to file a petition for replacement. If this replacement is proposed not by the plaintiff himself, but by another participant in the process, then this procedure must be carried out with the consent of the defendant.

After replacing the defendant with the proper one, the case begins to be considered from the very beginning. But if the plaintiff objects to the replacement of the defendant, then the case will continue to be considered according to the originally filed claim.

These rules are provided for in Article 41 of the Code of Civil Procedure of the Russian Federation. Based on this code, only the defendant is replaced. Cannot be replaced:

• plaintiff;
• a third party who makes his claims for certain interests.

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It is important not to confuse replacement with succession. The difference is this:

• succession is transferred on the basis of the transfer of rights in accordance with the law or any official document giving the right to claim it;
• replacement is carried out on the basis that this person is not the subject of the case under consideration and certain requirements cannot be presented to him by virtue of law or contract.

If a controversial situation arises, during which the rights and interests of a certain citizen were violated, it can be quite difficult to find out the proper defendant.

Types of delusion

In judicial practice, there are several types of misconceptions regarding the defendant. Such misconceptions may include:

• conscientious character;
• deliberate nature.

Depending on this, the case will be considered. However, if the plaintiff can prove the guilt of an improper defendant, then he will be held accountable and will be considered proper. Such situations occur when their subsidiaries bear the punishment for them, although the association itself is guilty of this violation. But it can be difficult to document that the responsible people of the corporation knew about the violations and deliberately allowed them to occur. Therefore, it can be much easier to prosecute an inappropriate defendant. And in order to receive at least some compensation, the plaintiff is forced to file a claim against someone whose guilt he can prove.

In the case of an honest mistake, the defendant may indeed not suspect that the fault of what happened lies with an entirely different defendant. And it is in this case that when this circumstance is clarified, a replacement occurs.

Elimination of improper defendant

If, during the preparation of the case or at the stage of trial in the first instance (before the decision on the case is made), it turns out that the defendant is improper, he can be replaced by a proper one. It is prohibited to make a substitution in the appellate and subsequent instances.

The replacement of an improper defendant is carried out at the initiative or request of the plaintiff. In order to exclude a defendant, the plaintiff must state the grounds for finding him inappropriate. Based on the replacement of the defendant, the court makes a ruling and the consideration of the case begins from the very beginning.

The plaintiff may not agree with the court on the exclusion of the defendant, then the court, with the consent of the plaintiff, can involve him in the case as a second defendant, or if the plaintiff does not agree, consider the case as is, but in this case there is a high chance of receiving a refusal to satisfy the stated claims.

Also, if there are two or more defendants, an improper defendant may be expelled, although such a procedure is not provided for by law, but is applied in practice. The plaintiff, when filing a claim against several defendants, actually excludes several and does not make a replacement.

Commentary to Art. 41 of the Civil Procedure Code of the Russian Federation

Comments on the articles of the Code of Civil Procedure will help you understand the nuances of civil procedural law.

1. Proper parties are citizens and organizations that have a subjective (personal) legal interest in resolving a legal dispute. To be a proper party in a particular case, it is necessary to be the subject of a controversial material legal relationship. But at the time of initiation of proceedings in a civil case, the judge is not able to determine whether the parties are proper, and cannot, on this basis, refuse to accept the statement of claim. Consequently, recognizing the party as proper at this moment can only be assumed. It is the presumptive connection of a certain person with a controversial material legal relationship that determines the ability not to process in general (which is typical for civil procedural legal capacity), but the ability to be a party in one or another specific legal proceeding.

The essence of replacing an improper party is the activity of the court to consider a dispute about the right in a new subject composition and (this is the main thing) taking such measures when the replacement as such is carried out. The court should strive to have the improper party withdraw from the process and the proper party to take its place, i.e. so that the replacement takes place.

The institution of replacing an improper party was also known to the previous civil procedural legislation, but the Code of Civil Procedure introduced changes to the content and rules for its implementation.

Previously Art. 36 of the Code of Civil Procedure of the RSFSR of 1964 provided for the possibility, under certain conditions, of replacing both an improper plaintiff and an improper defendant. This was fully consistent with the active role of the court, which by law it was supposed to occupy in civil proceedings. Significant changes that have occurred in recent years in the life of Russian society have required corresponding changes in the legal regulation of the activities of the court in the administration of justice. The changes and additions made to the Code of Civil Procedure of the RSFSR in 1995 and 2000 affected a significant part of the code and, in particular, such fundamental principles of civil procedural law as the principles of discretion, adversariality, and procedural equality of the parties. The court was freed from unjustified interference in procedural relations and the activities of the disputants.

In accordance with Art. 41 of the Code of Civil Procedure only the replacement of an improper defendant is allowed. An indispensable condition for replacing an improper defendant with an appropriate one is the plaintiff’s request for replacement or his consent to replacement, if the replacement is made at the initiative of the court. In cases of some categories, the proper defendant is determined by law (see, for example, Articles 1068, 1069 of the Civil Code).

For example, according to civil law, the right to claim property from someone else’s illegal possession belongs only to the alleged owner of the thing being vindicated (Article 301 of the Civil Code), its title owner (Article 305 of the Civil Code), as well as the long-standing owner (clause 2 of Article 234 of the Civil Code), therefore all other persons, if they present vindication claims, will be improper plaintiffs.

In accordance with Art. 1079 of the Civil Code, the defendant for harm caused by a source of increased danger is not the actual causer of harm, but the owner of the source of increased danger (the owner of the car).

According to Art. 1071 of the Civil Code in cases where, according to the Civil Code or other laws, the damage caused is subject to compensation at the expense of the treasury of the Russian Federation, the treasury of a constituent entity of the Russian Federation or the treasury of a municipal entity, the relevant financial authorities act on behalf of the treasury, if, on the basis of clause 3 of Art. 125 of the Civil Code, this responsibility is not assigned to another body, legal entity or citizen.

In accordance with Resolution of the Plenum of the Armed Forces of the Russian Federation dated February 24, 2005 N 3 “On judicial practice in cases of protecting the honor and dignity of citizens and legal entities,” the proper defendants in claims for the protection of honor, dignity and business reputation are the authors of untrue defamatory information, and also the persons who disseminated this information. If the disputed information was disseminated in the media, then the author and editors of the relevant media are the proper defendants. If this information was disseminated in the media indicating the person who was its source, then this person is also the proper defendant. When publishing or otherwise disseminating defamatory information that does not correspond to reality without indicating the name of the author (for example, in an editorial article), the proper defendant in the case is the editorial board of the relevant media outlet, i.e. organization, individual or group of individuals engaged in the production and release of this media (Part 9 of Article 2 of the Law of the Russian Federation “On the Mass Media”). If the editorial office of a media outlet is not a legal entity, the founder of the media outlet may be brought to participate in the case as a defendant (clause 5).

The question of at what stage of the proceedings is it possible to replace an inappropriate defendant, judging by the wording of Art. 41 of the Code of Civil Procedure, it was decided that replacement is allowed “during the preparation of the case or during the proceedings in the court of first instance.” At the same time, the legislator does not oblige the court to perform such a procedural action and gives it the right, using the term “may”.

2. However, you should pay attention to clause 4, part 1, art. 150 of the Code of Civil Procedure, in which, among the actions taken in preparing a case for trial, it is stated that the judge also “resolves issues regarding the replacement of an inappropriate defendant.” When comparing the above norm with the content of Part 1 of Art. 41 of the Code of Civil Procedure, some authors conclude that at the stage of preparing a case for trial, the judge only preliminary decides the issue of replacing an improper defendant, prepares for the replacement during the trial (notifies the plaintiff that the defendant is improper, requests the plaintiff’s consent to the replacement) . It is possible to recognize the defendant as a proper party only during the trial, since it is here, analyzing the case materials, that the court establishes that the defendant named by the plaintiff is the subject of the obligation in the disputed material legal relationship. Meanwhile, according to paragraph 23 of the Resolution of the Plenum of the Armed Forces of the Russian Federation dated June 24, 2008 N 11, if, when preparing the case, the judge comes to the conclusion that the claim was brought against the wrong person who should be liable for the claim, he, in compliance with the rules of Art. 41 of the Code of Civil Procedure, at the request of the defendant, the defendant may be replaced. Such replacement is made at the request or with the consent of the plaintiff. If the plaintiff does not agree to replace the inappropriate defendant with another person, the preparation of the case and then its consideration are carried out on the basis of the presented claim.

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If the plaintiff agrees to replace the defendant, the court issues a ruling that releases the improper defendant from the obligation to participate in the proceedings and postpones the case to bring the proper defendant into the process.

After replacing an improper defendant with a proper one, preparation for trial and trial begin from the very beginning, provided that the jurisdiction of the case has not changed. Otherwise, based on the provisions enshrined in Part 1 of Art. 47 of the Constitution, a civil case is transferred to the court that has jurisdiction over it.

The replacement of an improper defendant and the actions associated with the replacement must be reflected in the protocol. The protocol for performing procedural actions must comply with the requirements of Art. 229 and 230 Code of Civil Procedure. Such actions should be performed according to the rules of Art. 152 Code of Civil Procedure.

An improper defendant is a procedurally competent person participating in the case, an actual party, he has all procedural rights, and he bears all procedural duties. In this way, an improper defendant differs from a legally disinterested defendant, who, due to his lack of legal interest in the process, cannot be a person participating in the case.

Objections: improper defendant

When a person receives a copy of a statement of claim where they are named as a defendant, it may be in error. The plaintiff could have made a mistake in spelling, or mixed up the names of the companies (surnames). If the defendant deliberately thinks that he is not a party to the dispute regarding this statement, he can write objections to the statement. Objections are drawn up in writing and submitted to the court where the claim is pending.

The objection to the statement of claim must indicate the following:

• In the content of the application, it is necessary to indicate on what dispute (case) these objections are being filed;
• Indicate the requirements with which the defendant does not agree about his involvement in the consideration of the case, indicate the reasons why he cannot be a defendant;
• The objection must be accompanied by relevant documents, on the basis of which it can be understood that the person is wrong in presenting the demands to him.

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Procedure for replacing an improper defendant

The procedure for replacing an improper defendant in civil and arbitration proceedings is the same. To replace the defendant, the will of the plaintiff is sufficient, since replacement is made only at the initiative or at the request of the person. The defendant is replaced in the following order:

1. Identification of an improper defendant (for example, the defendant’s failure to comply with the documents submitted to the court, the defendant’s submission of objections);
2. Petition of the plaintiff (drawn up in writing);
3. Satisfaction of the court's request to replace the inappropriate defendant;
4. A court ruling to replace an inappropriate defendant.
5. After replacing the inappropriate defendant, the consideration of the case begins from the very beginning.

Based on the law, the plaintiff may refuse to replace the defendant in such a case; the defendant can be brought in as a second defendant, but also only with the consent of the plaintiff. The plaintiff may refuse such an undertaking, then the court will consider the claim on its merits, but in the event of identified violations or inconsistencies, the claim cannot be satisfied.

The court itself cannot replace an improper defendant with a proper one; only if it is impossible to consider the case on the merits, it can independently attract co-defendants for the correct consideration of the case.

The following commentary to Article 41 of the Code of Civil Procedure of the Russian Federation

If you have questions regarding Art. 41 of the Civil Procedure Code, you can get legal advice.

1. If the plaintiff is mistaken as to who should be the defendant in his application, the court has the right, in accordance with Part 1 of the commented article, on its own initiative, to allow the replacement of an improper defendant with an appropriate one; such replacement is made only with the consent of the plaintiff. Resolving the issue of choosing the appropriate defendant in a civil dispute depends on the establishment and examination of the factual circumstances of the case, and falls within the competence of courts of general jurisdiction.

2. The replacement of the defendant may be due to the reorganization of the enterprise.

3. The defendant in the case of protecting the rights of the insured, as a rule, is a medical institution of any organizational and legal form, a private practitioner. The basis for this is the provision of Art. 1068 of the Civil Code of the Russian Federation, according to which “a legal entity or citizen compensates for damage caused by its employee in the performance of labor (official, official) duties.” A medical worker of a state, municipal, or private medical institution cannot act as a defendant in a claim by the insured (his legal representative) or in a claim by the health insurance organization, TFOMS in the interests of the insured. If for some reason such a situation arises in civil proceedings, the question of replacing the inappropriate defendant must be raised.

4. According to Part 1 of the commented article, after replacing an improper defendant with a proper one, preparation and consideration of the case is carried out from the very beginning; It follows from this that in this case the period for consideration of the case is calculated from the moment the court makes a decision to replace the improper defendant with the proper one.

5. See also commentary to Art. Art. 150, 154, 281 Code of Civil Procedure of the Russian Federation.

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Petition to replace an improper defendant

Petitions to arbitration and courts of general jurisdiction are drawn up according to one standard form. The petition states the following:

1. The name of the court to which the petition is filed, you can also indicate the judge, the case number;
2. Name of the parties to the case (if individuals are full names, their details), address, telephone number, or name of the party’s representative;
3. The contents of the petition indicate the case number, the parties, the subject of the claim (what there is a dispute about);
4. It must contain information that the claim has been brought against that person, and the article on the basis of which this person must be replaced (indicate who to replace);
5. Attachments to the petition, documents necessary to confirm the replacement of defendants.

The petition is submitted in free form and is considered by the court; after consideration, the court issues a ruling on replacement.

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