The plaintiff in civil proceedings, including arbitration proceedings, has the unconditional right to refuse the claim (claims) in whole or in part. Files in .DOC: Form for waiver of claim in arbitration processSample waiver of claim in arbitration process
This right is limited in accordance with Art. 49 of the Arbitration Procedure Code of the Russian Federation, only the stage of the process at which the claim is abandoned and the condition that the refusal of the claim does not contain risks of causing damage to the rights and interests of third parties.
Restriction on grounds
Often, the plaintiff's claims directly or indirectly affect the interests of other persons participating in the process, either as co-plaintiffs or as third parties or interested parties.
By virtue of the provisions of Art. 49 Part 2 of the Arbitration Procedure Code of the Russian Federation, refusal of a claim, reduction or change of claims in whole or in part, which to one degree or another affects or violates the rights and legitimate interests of third parties, will be considered unacceptable and subject to rejection by the arbitration court.
If the arbitration finds it inadmissible to waive the claims, the corresponding petition will be rejected and the case will be considered on its merits.
Statement of refusal of claim under apk
Current legislation provides every person (both individuals and legal entities) with the opportunity to legally protect their rights and interests.
At the same time, the initiator of a legal dispute, when considering it, has the right not only to change the grounds and amount of his claims, but also to completely abandon the civil claim.
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This possibility is regulated by the APC and the Code of Civil Procedure of the Russian Federation. Rejection of claims against the defendant can be dictated by completely different reasons: voluntary satisfaction of demands, understanding of the low chance of winning in court, forgiveness of a debt, loss of interest in the proceedings, etc.
In any case, the waiver of a claim in arbitration proceedings, as well as in civil proceedings, must express the will of the initiator of the proceedings, comply with legislative norms and not infringe the rights of any of the parties, as well as interested third parties.
Limits of authority
The interests of legal entities in the arbitration court are represented by their proxies. Accordingly, a power of attorney to represent the interests of a legal entity (to participate in the arbitration process), in the event of a waiver of claims, must include the authority to waive the claim.
Otherwise, the motion to dismiss the claim will be rejected by the arbitration tribunal.
Waiver of a claim in arbitration proceedings: samples and explanations
The company decided to drop the litigation.
To do this, you will need to prepare an application. A sample waiver of claim in the arbitration process will help with preparation.
The company, but then decided to stop it. For example, the opponent voluntarily satisfied the company’s demands, and the claim was no longer necessary.
To complete the process, an application is filed with the court. You can draw up such a document using a sample waiver of claim in the arbitration process.
- via the Internet.
- at a court hearing,
- filing an application through the court office,
- by postal letter,
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If the company does not plan to attend court, care must be taken to ensure that the application is received in a timely manner.
Consequences of refusing a claim
The consequences of failure are represented by the following actions:
- Termination of consideration of the case.
- Reimbursement of legal costs.
Termination of court proceedings mostly concerns financial disputes. If the defendant, after initiating the case, independently pays off the claims and obligations to the applicant’s side, who has no claims left, further consideration of the case loses practical meaning.
The legal process is terminated when the plaintiff withdraws the statement of claim, and there must be no circumstances affecting and limiting the rights of the remaining participants in the process. Once the statement of claim is accepted, any claims against the defendant are released.
It is possible to draw up a waiver of a claim in the arbitration process if there are grounds that do not interfere with the law and do not affect the interests of third parties. The plaintiff, when filing an application, must remember the consequences and take them into account.
If the bailiff accepts the application, then under certain conditions it obliges the defendant to compensate the plaintiff for the costs incurred in legal proceedings.
Refusal of a claim in the arbitration process represents a partial or complete refusal by the plaintiff to protect his own rights in court. Thus, after its implementation, various unfavorable situations may arise for the plaintiff (for example, he is prohibited from repeatedly filing a similar claim against the first defendant in court again).
That is why experienced lawyers recommend carefully considering your desire to file an application to the court to return the statement of claim. After all, otherwise, you may lose the opportunity to further defend your position in court.
Who can file a cassation appeal?
In the lawsuit, the Moscow government asked that the investment contract, which was concluded in 2001, for the reconstruction of four facilities located on the Kremlin embankment be declared illegal. In particular, the defendant had to reconstruct and restore the architectural monument “Alyabyev House”.
And if such a statement of claim is mistakenly accepted by the court for proceedings, this legal proceeding will subsequently be terminated.
The company, but then decided to stop it. For example, the opponent voluntarily satisfied the company’s demands, and the claim was no longer necessary.
Thus, part 2 of Article 49 of the Arbitration Procedure Code of the Russian Federation, of course, cannot be a basis for refusing to approve the agreement reached in cassation.
Answer. A collective hearing of a case in an arbitration court of first instance is allowed only in cases provided for in parts 2, 3 of Article 17 of the Arbitration Procedure Code of the Russian Federation.
By a ruling of the Arbitration Court of the Volgograd Region dated March 9, 2000, on a complaint from bankruptcy creditors against the actions of the bankruptcy trustee, the agreements of Metallurgical OJSC with a number of citizens, including L.E.
In addition, please note that a claim can only be withdrawn at the stage of consideration in the first instance or appeal, before a decision is made on the merits. At the cassation stage, this is only possible if the parties sign, the text of which contains a condition on the plaintiff’s waiver of claims.
The appellate court, having established a contradiction to the requirements of the law or a violation of the rights of other persons by the stated refusal of the claim, does not accept it and considers the appeal on its merits.
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Having studied the presented agreement, the judicial panel found it possible to approve it as not contradicting the law and legal acts and not violating the rights and legitimate interests of other persons. By a ruling of the cassation court, this settlement agreement was approved, and therefore the decision and ruling of the arbitration court were canceled and the proceedings in the case were terminated.
At the same time, the current articles allow you to additionally send a cassation appeal against decisions and rulings of district courts that have entered into force even to the Supreme Court of the Russian Federation, when they have already been appealed to the presidium of the court of a constituent entity of the Russian Federation. True, as we already learned above, the Supreme Court considers a little more than 1% of such complaints. But it's still worth a try.
If the plaintiff’s representative waives the claim, the court must check the presence of such authority in the power of attorney, since the waiver of the claim refers to a number of “special” rights and is not specified in all authorizing documents. When issuing a power of attorney to conduct legal matters, the right to refuse a claim must be separately stated in the authorizing document.
To complete the process, an application is filed with the court. You can draw up such a document using a sample waiver of claim in the arbitration process. If the company intends to withdraw the claim, the court must be notified of this. They submit an application to abandon the claim to the arbitration court that heard the case.
The arbitration cassation appeal system is two-level and includes two links: district arbitration courts and the economic disputes panel of the Supreme Court. The complaint must be filed through the court of the authority that made the decision being appealed.
The basis for filing claims against the first defendant was his failure to fulfill his obligation to pay for goods purchased from the plaintiff.
This postulate especially clearly illustrates the activities of the Supreme Court of the Russian Federation as a cassation instance. Thus, according to statistics, the RF Armed Forces satisfy only 1.35% of such complaints received against it. That is, on average, only 1 complaint out of 100! This is a very low percentage. Most of the complaints received are not even transferred to the appropriate board of the RF Armed Forces.
On the abandonment of a claim in the court of cassation An example is usually given of a situation where unscrupulous plaintiffs, having lost a case, abandon the claim, trying to avoid prejudice that is unfavorable to them.
If the plaintiff has declared a waiver of the claim for compulsion to conclude an agreement in connection with the conclusion of a settlement agreement, the court should not accept the waiver of the claim without approving the settlement agreement.
A settlement agreement is the best alternative to such a measure as abandoning a claim in civil proceedings.
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Refusal of a claim in the cassation instance arbitration
The Arbitration Court of the West Siberian District presented on its website the recommendations of the Scientific Advisory Council at the AS ZSO, approved by the presidium of the court on July 8, 2015 .
The NCC provides clarifications on issues of arbitration courts related to the consideration of disputes arising from civil legal relations, the consideration of disputes arising from tax legal relations, as well as the application of the norms of the Arbitration Procedural Code of the Russian Federation.
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Thus, in particular, the Scientific Advisory Council at the Tyumen Cassation answers the question of whether the refusal of a claim in an appellate court can be qualified as an abuse of law if the claims are refused by the court of first instance, and the actions of the plaintiff in refusing the claim in court of appeal are aimed solely at returning the state duty paid to the federal budget and canceling the unfavorable judicial act?
When the appellate court considers the plaintiff’s application to waive the claim, it should be taken into account that Part 5 of Article 49 of the Arbitration Procedure Code of the Russian Federation defines the limits of the court’s control over the plaintiff’s disposal of his rights to waive the claim by checking the stated refusal for compliance with the requirements of the law and violation of the rights of other persons.
This norm ensures a reasonable balance between discretion and imperativeness in the arbitration process, compliance with the rule of law, and protection of the rights and legitimate interests of other persons.
The appellate court, having established a contradiction to the requirements of the law or a violation of the rights of other persons by the stated refusal of the claim, does not accept it and considers the appeal on its merits.
In the absence of these contradictions and violations, the appellate court has no grounds for not accepting the dismissal of the claim.
The full text of the recommendations of the Scientific Advisory Council at the Arbitration Court of the West Siberian District can be found here.
Can a plaintiff waive a claim filed in an arbitration court during the consideration of the case in a cassation court? How is the issue of the fee paid by the plaintiff for consideration of the claim, appeal and cassation complaints resolved in this case?
Answers:
In accordance with part two of Article 49 of the Arbitration Procedural Code of the Russian Federation, the plaintiff has the right, when considering a case in an arbitration court of any instance, before the adoption of a judicial act, which ends the consideration of the case in the court of the appropriate instance, to abandon the claim in whole or in part.
If the refusal of the claim does not contradict the law and does not violate the rights of other persons, the cassation court accepts the refusal of the claim, cancels the decision of the court of first instance and the decision of the appellate court and terminates the proceedings on the basis of paragraph 4 of part one of Article 150 of the Arbitration Procedure Code of the Russian Federation .
In accordance with Article 333.40 of the Tax Code of the Russian Federation, if the arbitration court terminates the proceedings in the case, the paid state fee must be returned to the person who paid it.
Thus, if the plaintiff refuses the claim when considering the case in the cassation court, the fee paid by the plaintiff when filing a statement of claim, appeal and cassation complaints must be returned to the plaintiff in the manner established by Article 78 of the Tax Code of the Russian Federation
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