Application to the court to cancel the court ruling to leave the statement of claim without consideration and to resume proceedings in the case

In a number of civil cases, instead of considering the dispute on its merits, the courts refuse to open proceedings on the claim or leave it without consideration already at the stage of hearing the case.

In some situations this is unlawful. And then the question arises, how to challenge the abandonment of a claim without consideration?

In this material we will talk about why the court may leave a claim without consideration, and how to challenge such actions. We will also mention the consequences that a corresponding judicial ruling entails in a civil dispute.

Appealing a ruling to leave an application without consideration

This process involves filing a separate procedural document. It is called a private appeal against a ruling of a district court or magistrate judge.

However, before you think about preparing it, you need to know the grounds for leaving a claim without consideration.

Based on the provisions of the Code of Civil Procedure of the Russian Federation, there are several reasons for such actions on the part of the court.

The first of them is the absence of a pre-trial procedure for resolving a dispute, if this is provided for both by the contract and by law.

For example, in disputes with an insurance company, a claim is required.

The court has the right not to consider a claim if it is filed (endorsed) by an incapacitated person or a person without the necessary authority.

The next reason for a claim to remain without consideration is the existence of the same dispute between the parties, which is heard by another judicial body. Likewise, the reason may be to refer the conflict to an arbitration court.

Expert commentary

Kosykh Tatyana Viktorovna

Lawyer, registration number No. 50/8948 in the register of lawyers of the Moscow region.

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Leaving a statement of claim without consideration is fraught with danger for the plaintiff if he did not attend court hearings two or more times without good reason, and did not ask the court to resolve the case without his participation. At the same time, the defendant should not insist on hearing the dispute on the merits.

Leaving the claim without consideration. Termination of proceedings in the arbitration court

The grounds for leaving a claim without consideration are defined in Art. 148 Arbitration Procedure Code of the Russian Federation.

The arbitration court leaves the statement of claim without consideration if, after accepting it for proceedings, it establishes the following circumstances:

in the proceedings of an arbitration court, a court of general jurisdiction, or an arbitration court, there is a case regarding a dispute between the same persons, about the same subject and on the same grounds;
the plaintiff did not comply with the claim or other pre-trial procedure for resolving a dispute with the defendant, if this is provided for by federal law or agreement;
when considering an application to establish facts of legal significance, it turns out that a dispute has arisen about the law;
a claim has been made that, in accordance with federal law, must be considered in a bankruptcy case;
there is an agreement of the parties to consider this dispute by an arbitration court, if any of the parties, no later than the day of submitting its first statement on the merits of the dispute in the arbitration court of the first instance, declares on this basis an objection to the consideration of the case in the arbitration court, except in cases where the arbitration court establishes that this agreement is invalid, no longer in force or cannot be performed;
entered into an agreement to submit a dispute to an arbitration court during the trial before the adoption of a judicial act, which ends the consideration of the case on the merits, if any of the parties raises an objection on this basis to the consideration of the case in the arbitration court, except in cases where the arbitration court establishes that this agreement is invalid, no longer in force or cannot be performed;
the statement of claim is not signed or signed by a person who does not have the right to sign it, or by a person whose official position is not indicated.

The arbitration court leaves the statement of claim without consideration on other grounds provided for by the Arbitration Procedural Code of the Russian Federation.

The procedure and consequences of leaving a claim without consideration are defined in Art. 149 Arbitration Procedure Code of the Russian Federation.

If the statement of claim is left without consideration, the proceedings end with the issuance of a ruling.

In the ruling, the arbitration court indicates the grounds for leaving the statement of claim without consideration, and also decides the issue of returning the state duty from the federal budget in the case provided for in paragraph 2 of Art. 148 Arbitration Procedure Code of the Russian Federation. Copies of the ruling are sent to persons participating in the case.

The ruling of the arbitration court to leave the statement of claim without consideration may be appealed.

Leaving a statement of claim without consideration does not deprive the plaintiff of the right to again appeal to the arbitration court with an application in the general manner after eliminating the circumstances that served as the basis for leaving the application without consideration.

The arbitration court terminates the proceedings if it finds that:

the case is not subject to arbitration;
there is a judicial act of an arbitration court, a court of general jurisdiction or a competent court of a foreign state that has entered into legal force, adopted in a dispute between the same persons, on the same subject and on the same grounds, except in cases where the arbitration court has refused to recognize and enforce foreign court decisions;
there is an arbitration court decision made on a dispute between the same persons, on the same subject and on the same grounds, with the exception of cases where the arbitration court refused to issue a writ of execution to enforce the arbitration court decision;
the plaintiff abandoned the claim and the refusal was accepted by the arbitration court;
the organization that is a party to the case has been liquidated;
after the death of a citizen who is a party to the case, the disputed legal relationship does not allow succession;
there are grounds provided for in Part 7 of Art. 194 of the Arbitration Procedure Code of the Russian Federation, i.e. if there is a court decision that has entered into legal force on a previously considered case, which verified on the same grounds the compliance of the contested act with another normative legal act that has greater legal force.

The arbitration court also terminates the proceedings upon approval of the settlement agreement and in other cases provided for by the Arbitration Procedural Code of the Russian Federation.

The arbitration court issues a ruling on termination of proceedings in the case. It specifies the grounds for termination of proceedings in the case, and also resolves issues regarding the return of state duty from the federal budget in the case provided for in paragraph 1 of Art. 150 of the Arbitration Procedure Code of the Russian Federation, and the distribution of legal costs between the parties.

Copies of the ruling are sent to persons participating in the case.

The arbitration court's ruling to terminate the proceedings may be appealed.

If the proceedings are terminated, it is not permitted to re-apply to the arbitration court in a dispute between the same persons, on the same subject and on the same grounds.

This is important to know: Additional claims in civil proceedings under the Code of Civil Procedure of the Russian Federation: sample

Consequences of leaving a claim without consideration

Leaving a claim without progress and consideration in procedural terms should be distinguished from refusal to accept a statement of claim or its return.

The last two actions are possible when the court has not yet initiated proceedings in the case. The claim can be left without consideration when the proceedings are opened.

If the judge decides to leave the claim without consideration, then a new application can be submitted to the counterparty, taking into account previous mistakes.

It can also include additional requirements that were not previously stated.

For example, during the first trial, the amount of the principal debt, penalties, interest, etc. increased. Therefore, all these amounts may become the subject of a second lawsuit.

For reference: If the claim is left without consideration, the state fee is returned or taken into account when submitting a new application.

There is another aspect of leaving a claim without consideration. As soon as such an unpleasant situation occurs, the statute of limitations will continue to run. This must be taken into account when preparing a new lawsuit.

For example, before the first application to court, the statute of limitations was already 2 years. Then, with a new claim, firstly, this period is taken into account, and secondly, the time of the previous consideration of the case.

Private complaint against the decision to leave the application without consideration

How to appeal a decision to leave an application without consideration

A private complaint against a ruling to leave an application without consideration is filed with the appellate court within fifteen days from the date the court issues the disputed document.

The appeal takes place through the office of the trial court. To do this, the complaint itself is sent with copies and attachments per each participant in the process.

These include not only the defendant, but also the prosecutor and third parties (subject to their involvement).

Expert commentary

Kosykh Tatyana Viktorovna

Lawyer, registration number No. 50/8948 in the register of lawyers of the Moscow region.

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For reference: filing a private complaint, even if the claim is left without consideration, does not require payment of a state fee. If we talk about the text itself, then it is necessary to provide arguments confirming the illegality of the ruling. You can take the sample below as a guide.

Another comment on Article 223 of the Code of Civil Procedure of the Russian Federation

1. Leaving an application without consideration does not resolve the civil case on its merits. In this regard, the court is obliged to make a ruling. It is decided in the deliberation room and after that must be immediately announced at the court hearing. A ruling to leave an application without consideration can also be made at a preliminary court hearing when preparing the case for trial (part 4 of article 152 of the Code of Civil Procedure, paragraph 34 of the Resolution of the Plenum of the Armed Forces of the Russian Federation dated June 24, 2008 N 11).

This is important to know: The right to bring a claim in arbitration proceedings

The content of the definition must comply with the requirements of Art. 225 Code of Civil Procedure. The judge must pay special attention to the reasoning part of the ruling, in which it is necessary to indicate the grounds for leaving the application without consideration, evidence confirming these grounds, and the rules of law that guided the court.

Due to the fact that the grounds for returning the application specified in Art. 135 of the Code of Civil Procedure, and the grounds for leaving the application without consideration are almost identical, the motives for the determinations in both the first and second cases must coincide.

The need to indicate the reasons for leaving the application without consideration and the rules of law that guided the court in this case is also required because at the end of the proceedings in the case under paragraph. 2 and 3 tbsp. 222 of the Civil Procedure Code, the state fee paid by the applicant is subject to refund.

If the application is left without consideration on the grounds specified in paragraph. 2 tbsp. 222 of the Code of Civil Procedure, it is necessary to indicate the body to which to contact for preliminary pre-trial settlement of the dispute.

If the application is submitted to the court by an incompetent person (paragraph 3 of Article 222 of the Code of Civil Procedure), the determination indicates the reason for leaving the application without consideration: failure to reach the age limit required to apply to the court (Parts 3 and 4 of Article 37 of the Code of Civil Procedure), or the presence of a judicial decisions to recognize a citizen as having limited legal capacity or incapacity. In addition to these facts, the definition specifies how errors made by legally interested persons in exercising the right to judicial protection should be eliminated.

2. In the ruling, the judge is obliged to explain to the interested parties their right to appeal to the court again after they have eliminated the circumstances that served as the basis for leaving the application without consideration (Part 2 of Article 223 of the Code of Civil Procedure). So, if the application was left without consideration on the grounds specified in paragraph. 7 and 8 art. 222 of the Code of Civil Procedure (failure to appear by the parties or the plaintiff), the court should note in its ruling that the proceedings may be resumed provided that the persons who did not appear provide evidence to the court confirming the valid reasons for their failure to appear at the court hearing and the impossibility of reporting them to the court.

3. The decision to leave the application without consideration prevents the further progress of the civil case. Therefore, it can be appealed by interested parties. At the same time, the law establishes two procedures for appealing and canceling them:

a) determinations to leave the application without consideration, made on the grounds specified in paragraph. 7 (failure of the parties to appear) and 8 (failure of the plaintiff) Art. 222 of the Civil Procedure Code, are canceled only at the request of the plaintiff or defendant by the court that made these determinations;

b) court rulings refusing to satisfy the above-mentioned requests of the parties and rulings made on all the grounds listed in Art. 222, 263, 298 and 315 of the Code of Civil Procedure are appealed to a higher court by filing a private complaint by the interested party, and by the prosecutor by submitting a presentation (Part 1 of Article 3 and Part 1 of Article 371 of the Code of Civil Procedure).

What will happen next

Before transferring the case to appeal, the first court gives opponents a certain time to file their objections on the merits of the private complaint. After this, you should wait for the date of the court hearing, which must be notified by the appellate authority.

The legislation states that a private complaint against a decision of a court of general jurisdiction to leave an application without consideration is considered for two months with all interested parties invited to the courtroom.

Based on the results, a decision is made either to leave everything as is or to cancel the determination. The latter means that the first instance will be obliged to continue consideration of the case on its merits.

It is also important to add that the verdict of the court of appeal regarding the filed complaint immediately comes into force.

Expert commentary

Kosykh Tatyana Viktorovna

Lawyer, registration number No. 50/8948 in the register of lawyers of the Moscow region.

Ask a question

Of course, everyone is free to decide for themselves whether to file a private complaint or bring a new claim and begin to sort things out with their opponent first. A lawyer will help you make the right choice, taking into account all the circumstances of the case, the statute of limitations and previous relationships between the parties.