So, a counterclaim is exactly the same lawsuit, but it is called so only because it is "counter-", which is presented by the defendant to the plaintiff.
All the same as we talked about the claim relevant and for the attitude of the oncoming suit. All kinds, all general rulesAll conditions ... Supplies are applicable, rules related to legal capacity, rules related to the impossibility of consideration of identical requirements ...
These are general rules. But there are also features.
Features of the counterclaim:
1. The general rules of jurisdiction do not apply here for a counterclaim. The counterclaim is always presented at the place of consideration of the initial claim.
2. For the adoption of the counterclaim, also installed special rules, special conditions that are listed in a separate article - article 138 GPK, which is called "the conditions for adopting a counterclaim" in which we see three additional, special conditions. For the adoption of the counterclaim is enough of one of these three conditions.
1) The counterclaim (counter request) is directed towards the test initial requirements. The counterclaim can be directed towards the initial requirements. The basis of this procedural condition is the material and legal norm (Article 410 of the Civil Code of the Russian Federation), in which we are talking that the obligation can end with the testimony of homogeneous counterclaims. That is, the standings can be the basis of termination of obligations. Accordingly, we are talking that the defendant has its own independent claim for the plaintiff, this requirement can be sent to the credit, these requirements are homogeneous and counter and possible relatives of these requirements.
For example, the plaintiff presented a lawsuit demanding 200 thousand rubles in its favor. The defendant presented a counterclaim - he has a demand for accumulating 100 thousand rubles. You can take such a counterclaim to the test.
But here required condition: The requirement must be uniform (the same amount, the same property ...). You can not count, let's say, the requirement to recover the amount of debt and eviction.
2) the satisfaction of the counterclaim excludes in whole or in terms of satisfaction of the original claim. That is, a counterclaim is sent to undermining the initial claim.
In this design, only one claim can be deleted: either the counter or initial.
For example, a claim for the recovery of alimony on minor child. The defendant may impose a claim for challenging the paternity record. There can be no compromise here.
The same claim for the recovery of alimony, counterclaim - on the transfer of the child to education.
For example, a claim for the dissolution of marriage. The counterclaim is invalid. These are completely different designs, different consequences.
3) There is mutual relationship between the counter and initial claims and their joint consideration will lead to a more rapid and proper consideration of the case.
The presence of the first two conditions is mandatory for the court - then the judge is obliged to take a counterclaim. But this third condition is at the discretion of the court.
Upon presentation of this counter, it can take, and maybe not accept.
For example, a contract for commercial hiring a residential premises was concluded between the parties. Moderator addresses a claim for eviction. The employer may submit a counterclaim for reimbursement of the value of the repair produced by them. You can and together, you can and separately consider ... they are different - both the legal, and the actual circumstances of the lawsuit are different, but can accelerate joint consideration ...
Another example: a claim for divorce and a counterclaim about the section of joint property.
The procedure for presenting or accepting a counterclaim.
1. As indicated in Article 137 of the Code of Civil Procedure of the Russian Federation, the counterclaim can be brought to the decision of the decision, that is, in other words, only in the court of first instance. As long as the decision was made. Otherwise, only an independent presentation of the claim in a separate process. Before making a decision from the moment of initiating the case, the most successful moment is under preparation for the consideration of the case.
As a result of the presentation of the counterclaim, the court postponed the proceedings, in order to give the time to the plaintiff familiarize themselves and prepare for protection against this counterclaim.
Judges do not like counterclaims, as it complicates the process. But in practice they are quite common.
2. The defendant in the counterclaim just pays for the state duty, amounts to statement of claim etc…
3. The counterclaim is an independent respondent tool. The defendant can also change the subject or the basis of his counterclaim, on this conversational claim, the parties can conclude a settlement agreement.
If the parties came to the settlement agreement on the initial claim, in this case, the initial proceedings are terminated, and on the counter - is considered. And on the contrary, if the oncoming terminated the conclusion of the settlement agreement, this does not mean that the initial one will stop.
4. The counterclaim can be brought only by the defendant (there can be no third face) and only to the plaintiff. No third parties or prosecutors or other persons who represent the interests of other persons in court cannot be presented.
If the defendant does not agree with the statement submitted by the court by the plaintiff, he (the defendant) has the right to submit a counterclaim. By coincidence, did you get into place of such a defendant? Then be sure to familiarize yourself with the information below. You will learn about the basic rules for compiling and submitting such applications, the procedure for their admission and consideration and other significant nuances.
Counter statement of gpk
To express your disagreement with the claims of the plaintiff, the defendant can make a counter statement. The feedback standards are governed by 137-138 articles of civilian procedure Code. The application is filed at the place of adoption of the initial claim.
Article 137. The presentation of the counterclaim
Having considered the details of the response statement, the court may satisfy the demands of the defendant or refuse to make a claim. Under any circumstances, the course of the proceedings is controlled by current legislative norms, and the nuances of each case are considered in individual order.
Article 138. Conditions for accepting a counterclaim
When and who can serve retaliatory claims?
The right to submit a counterclaim is saved for the defendant at all stages. judicial trialpreceding the moment the final decision by the court. That is, a response claim can be applied immediately before the completion of the process, after the departure of judges to the meeting before making a decision. Under such circumstances, the judge will be forced to decide the resumption of the proceedings, and at this stage the respondent will have the opportunity to present the plaintiff response claims.
Counterclaim
The defendant may file a suit person personally or through a trusted representative with relevant authority. The list of authority that the defendant provides its judicial representative, negotiated in the body of the agreement concluded between them.
What are the conditions taken oncoming claims?
In order for the oncoming statement of the Code of Civil Procedure to be made by a court to consideration, certain conditions must be respected.
First, the claims should affect the initial demands of the applicant.
Secondly, the response claim must be compiled in such a way that in the case of its approval by the court the possibility of satisfying the provisions of the Basic Claim is excluded completely or partially.
Thirdly, there should be a relationship between two claims. That is, for example, if the plaintiff constitutes a statement regarding the nuances of the shared property section after a divorce, the defendant can be a response claims only in the same case, and not to solve disputes on further care of children. The last claim from the example is not counted and is considered separately.
When the response claims are not accepted?
The law does not provide for the possibility of combining claims and studying counter-claims regarding cases affecting the return of the child to another parent after a divorce. A similar attitude to the court to the realization of access rights.
From the above rule, there is a pair of basic exceptions. First, the case will be considered when combining the requirements for the return of more than one child, if the children were brought to the country or hold on its territory without any legal circumstances.
Secondly, the court will take to study the case of combining claims affecting the rights of access with respect to more than a child if there are grounds provided for international Treaty RF.
Recommendations for the preparation of the claimYou can get an example of the claim in the office or at the Court's Information Station. In general, the order of registration of a response is similar to the composition of the initial statement. In document B. obligatory The following information should be reflected:
- personal data of both parties to the case;
- the cost of a claim if the case in question concerns the various kinds of property disputes;
- civil case;
- key bases and essence of response claims;
- the meaning of the initial claims from the claimant;
- list of attached documents;
- date, signature.
What documents to apply to the application?
The list of attached documents may vary depending on the circumstances of the specific case and the provisions of the current legislation. Specify this moment individually immediately before turning to court. In general, the court requires that the oncoming statement attached:
- its copies in the number of recipients;
- power of attorney to the representative in case of its attraction;
- receipt of the payment of state duty;
- documents on the basis of which the applicant puts forward its requirements (if available) and their copies;
- calculation of the reason for the claim when considering the case of various types of property proceedings.
Can also be attached additional documentsIf the individual features of the resigned dispute require.
When can the statement be returned or left without movement?
When the application can be returned or left without movementThere are a number of circumstances, on the basis of which the counter statement may be rejected by the court, namely:
- the applicant made a lawsuit without complying legislative norms either did not introduce required documentspredetermining the validity of the claim;
- court authority does not apply to such a category;
- the claim is not signed, compiled with errors, etc.
In general, each case is considered individually and a list of grounds sufficient to reject the claim can significantly expand. Under any circumstances, the judge returning the claim gives this motivated explanation, pointing to errors and providing recommendations for further actions (eliminating the preventive circumstances, the choice of a suitable court, etc.).
If, during the study of the case, the judge will establish that the statement submitted by the defendant is drawn up and submitted to the court with violation of the requirements of the relevant articles of the Code, the lawsuit will not receive. Applicant will be sent a corresponding notice with the indication of the deadlines for the correction of the identified deficiencies.
If the applicant eliminates the following defects within the prescribed period, the application will be accepted. Otherwise, the plaintiff receives a statement and related documents back, and the case itself is not accepted for study.
If the court will be decided to leave a response claim without movement, the applicant, considering it necessary, may challenge such a decision, making an appropriate appeal.
The submission of the counter statement is legal right Each defendant
Thus, the submission of the counter statement is the legal right of each defendant. In this kind of statement, you can express my disagreement with the provisions of the original claim and change the outcome of the case if there will be weighty and sufficient grounds for this.
Video - counter statement of CCP
| No. p / p | Documents attached to the claim | Return of the claim. The judge returns the statement of claim in case | Leaving the claim without movement | Conditions for adopting a counterclaim. The judge takes a counterclaim in case |
|---|---|---|---|---|
| 1 | the claim and its copies in accordance with the number of respondents and third parties | plaintiff not complicated federal law For this category of disputes or provided by the contract parties, the pre-trial procedure for resolving the dispute or the plaintiff did not submit documents confirming compliance pre-trial order settlement dispute with the defendant, if provided for by federal law for this category of dispute or contract | Judge, having established that the statement of claim was submitted to the court without compliance with the requirements established in Articles 131 and 132 of this Code, it makes a definition of leaving the application without movement, as noted by a person who submitted a statement and provides him with a reasonable time to correct deficiencies | the counter requirement is directed to the offset of the initial requirement |
| 2 | payment confirming state duty | the case is obvious to this court | In case the applicant in set time The reference to the judge listed in the definition, the application is considered to be submitted on the initial submission to court. Otherwise, the application is considered non-subfolder and returns to the applicant with all documents attached to it. | satisfaction of the counterclaim excludes in full or part of the satisfaction of the original claim |
| 3 | power of Attorney or other document certifying the authority of the representative of the plaintiff | the statement of claim is filed incapable | A private complaint may be submitted to the definition of a court on leaving the claim without movement. | there is mutual communication between the counter and initial claims and their joint consideration will lead to a more rapid and proper consideration of disputes. |
| 4 | documents confirming the circumstances on which the plaintiff basses its requirements, copies of these documents for the defendants and third parties, if there are no copies | the statement of claim is not signed or the claim is signed and filed by a person who does not have the authority to sign it and present | ||
| 5 | text published normative legal Act in case of challenging | in the production of this or another court, either the arbitration court deal on a dispute between the same parties, about the same subject and on the same basis | ||
| 6 | proof confirming the fulfillment of the mandatory pre-trial order of settlement of the dispute, if such an order is provided for by federal law or contract | before determining the court on the adoption of the claim for the work of the court from the claimant received a statement about the return of the claim | ||
| 7 | calculation of a collective or disputed monetary sum, signed by the plaintiff, his representative, with copies in accordance with the number of respondents and third parties | The reference of the claim, the judge makes a motivated definition, which indicates which court should apply to the applicant if the matter is not the opportunity to this court, or how to eliminate the circumstances that prevent the initiation of the case. The definition of the court must be made within five days from the date of receipt of the application to court and awarded or sent to the applicant together with the statement and all the documents applied to it | ||
| 8 | The return of the claim does not interfere with the reapplies of the plaintiff to court with the case to the same respondent, about the same subject and on the same basis, if the plaintiff will be eliminated by a violation. A private complaint may be filed for the definition of a judge |
Counterclaim - This is an independent demand for the protection of subjective law (interest) of the defendant, which declares them in the already arising process for joint consideration with the initial claim.
The presentation of the counterclaim by the defendant is carried out in common order, with the exception of the rules on the jurisdiction, which is determined by the connection of cases, as well as adherence provided by law Special conditions.
Conditions of adoption by the court of the counter request (Claim):
1. The counter requirement should be directed towards the initial requirements.
The use of the respondent of the counterclaim as the means of testing the initial requirement is possible only with the homogeneity of the counter subjective rights (interests) and legal responsibilities, the term of the implementation of which has already occurred either the term is not specified or determined by the moment of claims.
It is not allowed to use a counterclaim, which is aimed at the initial testation in the case when applying the other party to the oncoming requirement of limitationwhich is already expired; on issues of compensation for harm caused to life and health; According to the requirements for the recovery of alimony, as well as in cases provided for by law or contract.
The requirement for testing may be announced by the defendant both in the form of a counterclaim and in the form of a logistical objection. The advantage of the counterclaim is that the court is obliged to give an answer on the merits. all The claimed claims, both the original lawsuit and the counter.
The disadvantages of this form include compliance with the respondent requirements for the form and content of the claim, as well as the requirements for the payment of state duty.
The advantage of the material and legal objection is that the defendant is not related to the form of form and content of the claim, and there is also no obligation to pay the state duty. However, the defendant in this case risks to remain with nothing, because the court, giving an answer to the initial lawsuit, for some reason not related to the competition, which is declared by the defendant (not decorated as a counterclaim) will leave it without consideration and satisfaction , unlike the oncoming claim that he must give an answer.
2. If the satisfaction of the counterclaim excludes in full or in terms of satisfaction of the initial claim;
For this, it is necessary that the initial and counter requirement, in spite of its relationship, was mutually exclusive (for example, the requirement for the recovery of alimony is a claim for paternity challenge).
3. If there is a mutual connection between the counter and initial requirement and their joint consideration will lead to a more rapid and proper consideration of the case.
Art. 138 GPK (see Comment).
Procedural and logistical and legal consequences of presented claim
Procedural consequences:
1. The initiation of civil affairs: the court arises the right and obligation in the time established by law to consider and resolve a specific case;
2. The plaintiff is entitled to require the commission of all necessary procedural actions to resolve the concrete claim;
3. The defendant has the right to realize his right to defense in the form of an objection or counterclaim;
4. At an alternative jurisdiction, the plaintiff loses the right to choose a jurisdiction, because It has already been used by the claim;
5. The court is not entitled to take identical claims to its production.
Material and legal consequences of the presented claim:
1. The presentation of the claim interrupts the current limitation period (Article 203 of the Civil Code);
2. The conscientious owner of someone else's property is obliged to reimburse all the revenues that he removed from the date of receipt of the agenda on the claim of the owner on the return of property (Article 303 of the Civil Code);
3. Alims are awarded for the future from the moment of handling the claim to the court (paragraph 2 of Art. 107 SC);
as well as other consequences provided for by the material law.
According to Article 412. Civil Code Russian Federation (hereinafter referred to as the Civil Code of the Russian Federation) in the event of a concession, the debtor is entitled to consider his counter-to-initial creditor against the requirements of a new lender in compliance with a number of conditions. Such a test is allowed if the requirement arose based on the receipt of the demand for the demand for the receipt of the debtor's receipt, and the term of the claim has arrived before it is received or this period is not specified or determined by the demand.
Despite the rather clear wording, in practice, the credentials in the event of a concession requires a large number of questions.
The relationship between the cable, the cessionary and debtors are more complicated even in a situation where the dispute for debt collection is under consideration by the court. IN this article We would like to stop on some issues of the implementation of the credit against the defendant requirements precisely within the framework of the trial.
Offset and counterclaim
First of all, it is worth recalling that according to paragraph 1 of the information letter of the Presidium of the Supreme Arbitration Court of the Russian Federation of 29.12.2001 No. 65 "An overview of the practice of resolving disputes related to the termination of obligations with regard to counter homogeneous requirements" (hereinafter - the information letter of the Presidium of the RF N 65) After presenting a claim for a person, having the right to declare a standings, such a person can realize their right to test only through a counterclaim.
Accordingly, as soon as the dispute comes to the court, the debtor is losing the opportunity to terminate the obligation through a unilateral extrajudicial statement about the standings. Such an application must be implemented in compliance with the requirements of both the material law and procedural.
According to part 1 of article 132 of the Arbitration Procedure Code of the Russian Federation (hereinafter - the APC RF), the defendant before adoption arbitration court The first instance of the judicial act, which endes the consideration of the case on the merits, has the right to impose the plaintiff to consider it together with the initial claim. Accordingly, based on the literal interpretation of the law, if a cessionary acts as the plaintiff, then the counterclaim must be concluded for cessionary. However, this approach often causes difficulties in law enforcement practice.
In particular, this is due to the fact that the oncoming demand of the debtor to the initial creditor may not be associated with the obligation through which the assignment of the rights of claim is made. By virtue of paragraph 7 of the above information letter, the Presidium of the Russian Federation No. 65 Article 410 of the Civil Code of the Russian Federation does not require that the requirement has flowed from the same obligations or obligations of one species.
Thus, the debtor is entitled to consider his counterclaim to the original lender, resulting from any other obligation against the requirements of the new lender. As the Federal Arbitration Court rightly noted (hereinafter referred to as the Federal District in the decision of 09/18/2013 N F09-8335 / 13, actually the legislator places the risk of circumstances on the existence of which at the time of the concession, he objectively knew and should not know.
Such a situation was reflected in the definition of you of the Russian Federation dated December 16, 2011 N you-15832/11.
Citizen P. (Cedent) gave way to society (censionary) its requirements for the company in 12 loan agreements. In connection with the non-fulfillment of obligations under these treaties, the Company applied to the company with a claim for debt collection. The company, in turn, presented a counterclaim on society, based on the fact that by the time of the concession at P. was there an unfulfilled obligation to return unjust enrichment in favor of the company. Cessionary objected to the satisfaction of the counterclaim, referring to the fact that the obligation of the subject on the return of unjust enrichment arose not from contracts, the rights for which were defended, and that he did not accept the debts and duties of the subject.
The Russian Federation considered such an interpretation civil law erroneous. According to the college of the judges of the Russian Federation, the recovery from the new lender is unjust enrichment of the initial creditor is legitimate and reasonable, since the oncoming requirement for the initial lender arose on the basis of which at the time of receipt of the notification of the demand for the requirement of the requirement to the new lender, and the deadline for the requirement has arrived before that moment.
Thus, despite the fact that the cessionary who presented a lawsuit to the debtor may not even know about the existing debt of the subject to the debtor and not to have any evidence in this regard, he will act as a defendant in the countercourse, aimed at testing.
More recently, this conclusion was confirmed again. The court considered the case in which the defendant tried to present a counterclaim in such a situation not to the cessionary, but to the subject attracted to participate in the case as a third party. The court of first instance concluded that it was necessary to return the counterclaim. The court of cassation supported this conclusion, indicating that according to legal Nature The counterclaim of the position of paragraph 1 of Article 132 of the APC RF is allowed to present counterpart requirements only by the plaintiff at the initial claim, and not to a third party (the decree of the Arbitration Court of the Volga district dated September 30, 2014 in case No. A72-768 / 2014).
Concession during the trial
After presenting a counterclaim
The situation changes somewhat if the debtor managed to present a counterclaim to the initial lender before the assignment of the claim.
Suppose that the company "A" and the company "B" have counter demands to each other in the amount of 100 rubles. In the process of consideration by the court, the requirements of the company "A" to the company "B", the latter presents the oncoming claim for the recovery of 100 rubles. After the court acceptance by the court, the company "A" is inferior to the requirement of 100 rubles to the company "B" in favor of the company "C". Should such a concession be entrusted to the automatic replacement of the defendant in a counterclaim or as part of one case will be considered requirements with different subjects?
In the case of N A21-3565 / 2010, considered by the Russian Federation in 2013, just a similar situation.
The defendant presented a counterclaim to test the initial claims of the plaintiff. In order to prevent the holding of credit, the plaintiff gave way to a third party to the initial claim. As a result of held procedural advocacy Within the framework of one case, the requirements with different subjects were considered: a third party (cessionary) to the defendant and the defendant to the initial plaintiff (cedent).
A question arose before the court: can the defendant in such a situation require the test of his claims on a counterclaim against the requirements of a third party? The courts of the first and appeal instances considered what could. However, the FAS of the North-West District did not agree with them and canceled the decisions of two instances.
The court of cassation indicated that the existing procedural legislation It does not provide for the possibility of testing by the Court by the Cast amounts, divided in favor of one person, in the account of the amounts paid from another person, since Article 412 of the Civil Code of the Russian Federation, who gives the debtor to the right to account for its requirements for its requirements, but to the subject, regulates material relations and Cannot be applied to procedural.
The highest judicial instance, on the contrary, stood on the side of the defendant and confirmed the possibility of testing the requirements for the oncoming claim by repealing the resolution of the FAS of the North-West District.
The Russian Federation proceeded from the fact that the change of the lender in the obligation should not worsen the position of the debtor. The objections that the debtor had against the requirement of the initial lender, which existed by the time of receipt of the acceptance notification may be filed with a new lender (article 386 of the Civil Code of the Russian Federation). Accordingly, if at the time of the concession of the debtor, who presented a counterclaim, there was the right to test the oncoming requirements, it is impossible to deprive him of this right and after concession.
As pointed out to the Russian Federation, in the event of a certificate of the counterclaim, the claim for the initial claim in itself is not the circumstance limiting the application in arbitration process As provided for by Article 412 of the Civil Code of the Russian Federation of the Maturity Institute for the Requirements of the New Lender (Decision of the Presidium of the Way of the Russian Federation of November 26, 2013 No. 4898/13).
Accordingly, the Russian Federation confirmed the possibility of simultaneous consideration of the initial and oncoming lawsuits with a different subject line and the subsequent credentials for claims.
It is noteworthy that in the case described above No. A72-768 / 2014, the defendant who presented a counterclaim not to the cessionary, and to the subject, also referred to this resolution of the Presidium of the Russian Federation as a substantiation of the need to take his counterclaim for production.
However, the Arbitration Court of the Volga district delimited these situations, indicating the following: "The reference of the claimant for the legal position of the Supreme Arbitration Court of the Russian Federation, set out in the Decree of the Presidium of November 26, 2013 No. 4898/13 on the application of the provisions of Article 412 of the Civil Code of the Russian Federation, the judicial board considers unreasonable Since the subject of assessment and resolution of the dispute in said business was a different procedural situation - the assignment of the rights of the claim occurred after making a counterclaim. The conclusions of the courts of the present case on the possibility of making an adoption of a counterclaim does not contain any contradictions by the above-mentioned resolution of the Presidium. "
Thus, it turns out that if the defendant did not have time to present a counterclaim to the provider, then regardless of when a concession was held (before the initiation of the case in court or after), it must be submitted to the concessional requirements for cessionary. If he has already managed to present a counterclaim to the csench, then the defendant will remain the defendant for such a lawsuit. Accordingly, in the latter case, simultaneous consideration of the initial and counterclaim with different subjects and the subsequent credentials will be possible.
On the one hand, these solutions confirm that, no matter when CESSIA occurred - until the dispute occurred in court or during, the debtor should still be preserved the right to test under Article 412 of the Civil Code of the Russian Federation. The main idea to be guided by the courts is reduced to the fact that the debtor cannot be infringed in the rights that he had before and outside the process. If the debtor's process was right to put forward against the demand of the new lender, the objections he had to the original lender, and the right to test against the requirements of a new lender, then these rights should be preserved in his process, regardless of who to whom will be presented counterclaim.
On the other hand, as we have convinced, the most common is the situation when the court will be considered by the debtor's counterclaim not to the cedent, but to the cessionary. And in such a situation, the judicial and arbitration practice does not clarify how the guidance is defended against the presented claim. In this regard, another interesting thing arises, in our opinion, the question: should the requirement, which is imposed on the test, be indisputable?
Constability of readable requirements
Before moving to the analysis of the conditions for satisfying the counterclaim, it is necessary to determine whether the unquestion of consistent requires as such an inherent condition for any test (regardless of whether the concession was made of the claim and whether production was initiated in court). In other words, if the test occurs outside the framework of a judicial dispute between the debtor and the lender, should the readable requirement to wear indisputable character?
Civil law directly does not impose a similar requirement. According to Article 410 of the Civil Code of the Russian Federation, the considerable obligation must be counter, uniform, and its time has come, not specified or determined by the moment of demand. Other conditions for holding the legislation does not provide. Nevertheless, judicial practice You can meet direct opposite approaches on the question of the incidence of readable requirements.
So, for example, in the resolution of the FAS of the North-Western District of 01/21/2013 in case No. A66-6101 / 2011, it is indicated:
"In accordance with Article 410 of the Civil Code of the Russian Federation, an obligation is terminated in a fully or partially offset of the oncoming homogeneous demand, which occurred or the period of which is not specified or determined by the moment of demand. For testing, a sufficient statement of one side is sufficient.
From the above standard it follows that the requirements aimed at testing must be indisputable. "
Similar conclusions are set out in the resolutions of the FAS of the Moscow District of 17.02.2011 N Ka-A40 / 164-11-P, FAS North Caucasian District 11.11.2013 in case No. A32-11238 / 2012, FAS of the East Siberian District of 08/17/2012 in case No. A78-7185 / 2011 and FAS Central District from 08.07.2014 in case No. A23-4303 / 2013.
The logic of such statements is based on the fact that only one of the parties is sufficiently willingly. Accordingly, if such a party submits to a test requirement that is not indisputable, then the principle of equality of participants is violated civil turnover (Resolution of the FAS of the East Siberian District of August 17, 2012 in case No. A78-7185 / 2011).
In scientific literature, you can also find statements in support of the specified approach. So, for example, in the study of R.S. Bevzenko and TR Fakhretdinova is explained that the offset of the contractual requirement against the non-implementary cannot be made not because these requirements are inhomogeneous, but because non-foreign commitmentsUnlike contractual, do not wear indisputable.
Nevertheless, in judicial practice, another point of view, based on the position of the Russian Federation, expressed in 2012 is common.
In the Decree of the Presidium of the Supreme Court of the Russian Federation dated 07.02.2012 N 12990/11 it was clarified that the explicitness of the consistent requirements and the lack of objections of the Parties relative to both the presence and size of the requirements are not defined as the Code of Civil Code. Consequently, the presence of a dispute regarding one of the consistent requirements does not prevent the application for the standings, provided that under the obligation, the cessation of a considerable requirement is sent, at the time of the statement about the competition has not been initiated in court. The Russian Federation reminds you that in case of initiating production in court, it is necessary to make a counterclaim.
In this case, the Russian Federation indicates that, if the person, against whose requirement was made, it believes that this test does not entail legal consequences, such a person has the right to apply to court with a claim for debt collection. And already within the framework of the trial it will be established whether the defendant had counter homogeneous requirements for the plaintiff and whether the obligation was fully or in part.
Accordingly, in judicial practice there are decisions in which the wording of the decision of the Presidium of the Russian Federation is repeated and the arguments of the parties are rejected on the possibility of testing only undisputed requirements (see, for example, the definition of you of the Russian Federation from 03.09.2013 N you-11896/13, Western District of 08/15/2013 in case No. A56-65235 / 2012 and FAS of the Volga-Vyatka district of 04/22/2013 in case No. A82-3724 / 2012).
However, to say that the decision of the Presidium of the Russian Federation of 2012 was a turning point for the practice of arbitration courts, it is impossible. Even after the adoption of the highest judicial instance of this resolution, within the framework of the same judicial district, you can meet directly opposite solutions.
Thus, at the moment there is no uniformity in the approaches, but, based on the decisions we studied, it is still prevailing the approach that only undisputed requirements are accepted.
As it was already indicated, this is explained by the fact that the creditor's position should not worsen. In particular, according to a number of authors, the claims for the recovery of the penalty, losses, interest for illegal use of other people's funds cannot be considered as indisputable, since it is clearly defined by their monetary expression, only after considering these requirements by the court. The court has the right to reduce the size of the penalty, to determine the responsibility of the injury of harm, taking into account the guilt of the victim himself, etc.
This logic is quite understandable: until the court determines the amount of the claim, the creditor for readable requirement cannot be sure that he has a duty to the debtor in the amount of which he refers. However, the correctness of this approach is a discussion. In our opinion, more fair is the point of view based on the literal interpretation of the law, according to which the unquestion of the readable requirement is not a condition of testing. Nevertheless, within the framework of this study, it seems to be interesting to us, whether the position of the courts about the delicacy of readable claims in a situation is changing when the Sater is talking about the standings to the CESSIONARY.
Constability of readable requirements for the oncoming claim
Consider this issue on the example of a particular case.
The company appealed to the Society for the recovery of debt for electrical energy transmission services.
Subsequently, the company in the order of procedural succession is replaced by an individual entrepreneur who has been inflicted the right to require the company to society.
In turn, the Company presented a counterclaim to individual entrepreneur On the recovery of the value of the actual loss of electrical energy in the networks of the company and interest for the use of other people's money.
The court of first instance came to the conclusion about the presence of unfulfilled mutual commitments of the Company and the Company arising from the Treaty for the provision of services for the transmission of electrical energy and compensation of electrical energy losses in networks. On this basis, the court satisfied both claims and made a credit of the accumulated amounts.
The courts of appeal and cassation instances did not agree with this conclusion and refused to satisfy the counterclaim, motivating their decision as follows:
"In the sense of these rules of law (Articles 386, 410, 412 of the Civil Code of the Russian Federation. - approx. Auth.) The credit in the event of a concession of law can be made in respect of actually existing requirements that have the undisputed nature arising from homogeneous obligations whose execution period has come.
but court of Appeal It was established that the subject of assignment under the contract of January 25, 2010 is the right to demand debt for payment of energy transportation services on the networks of the initial creditor under the contract of January 14, 2009. Together with this, the rights and obligations under this transaction arising from the obligations of the initial creditor for paying the cost of losses in networks, the cessionaria was not transmitted. Features legal regulation Relationships for compensation for the cost of losses and specificity of obligations arising from them, closely related to the personality of the debtor on them ( network organization), especially since the materials of the case are not confirmed by their indisputable character, make it impossible to imply the obligations on the guidance on their execution by the mechanism established by Articles 410, 412 of the Civil Code of the Russian Federation (the decision of the Far Eastern District of 04.10.2010 N f03-6930 / 2010).
The Court of Law supported the conclusions of the court of cassation, noting that the Cessionaria was not transferred to the rights arising from the obligations to pay for losses in networks, and, indicating that the case of the case was not confirmed by the undisputed nature of the applicant's counterclaims (defining the country of the Russian Federation of 10/21/2010 N you-14385/10).
From the text of judicial acts it is impossible to determine whether it is enough to refer to the satisfaction of the counterclaim to simply state that the responsibilities under the Treaty of Cessionaria were not transmitted or should be checked if such duties are closely related to the debtor's personality and whether they are indisputable.
On the one hand, the assignment of the right of claim and the transfer of debt is two independent civil legal institutions. And in the literature, the dominant is the opinion that "the assignment of the right of claim in accordance with Article 382 of the Civil Code of the Russian Federation on mutual obligations does not entail the automatic translation of the debt and replacement of the parties in the obligation." Accordingly, the debtor claims a new lender on the standings against his demand for his counterpart for the initial lender, but the initial lender remains obligated at this request, regardless of whether such a requirement is connected closely with the identity of the initial creditor.
On the other hand, the debtor (the defendant at the initial claim) is entitled to consider his requirements for the initial lender against the requirements of Cessionary, by presenting a counterclaim to the guidelines on the basis of the fact that the discharge debts do not go to the cessionary, it is impossible.
Further, apparently, understanding this contradiction and wanting to protect the rights of the debtor, judicial practice resorts to a favorite criterion of indisputability. It turns out that debts to the cessionary, who presented a lawsuit to the debtor, do not pass, while he remains the defendant in the leading claim of the debtor, aimed at the offset, but the court will be satisfied only in the event of the confidence of the requirements.
Where this criterion appears and what is meant under it in the case when the dispute is under consideration of the court, it is also not quite understandable. When it came about the pre-trial standings, it was possible to trace the logic - until the court determines the cash equivalent of some requirements, the creditor rights may be violated. But in the situation under consideration, the submission of an oncoming claim already implies that the creditor rights cannot be violated, since the cash equivalent of the readable requirement will be determined by the court. The defendant submits a counterclaim to the court not so that the court simply stated that the requirement is controversial, and in order for such a dispute to eliminate.
Probably, in understanding of judges, the undisputed requirement either should be recognized as the other party, or should be recognized in the judicial act.
However, in a situation where the requirement was recognized in the judicial act, certain difficulties may also arise.
Recall the conditional companies "A" and "B", which have mutual requirements for each other by 100 rubles. Suppose that the company "B" appealed to the court with a claim for the recovery of 100 rubles from the company "A". This claim was satisfied, the court recognized the right of the company "B" to recover the debt. Subsequently, the company "A" is inferior to its requirement to the company "B" in favor of the company "C", which makes an appropriate lawsuit in court. The company "B", who wants to exercise the requirements, presents a counterclaim to the company "C" (Cessionaria) on the recovery of debt confirmed judicial act According to the dispute between the cedent and the company "B". It would seem that this requirement for testing is indisputable, but the company "C" can state that it was not a member of the process in which it was recognized specified requirement, I. judicial decision According to that, it does not have a mandatory value for it.
A similar situation has developed in the case, within which the censionary referred to the fact that the debtor cannot use a decision on a dispute with the cedent against him because he did not participate in judicial process. However, the court of first instance did not agree with this statement, indicating that the enterprise's requirement was established by the decision of the Arbitration Court Arkhangelsk region From 02.06.2005 in case No. A05-3564 / 05-23 in the amount of 7011712 rubles 5 kopecks of the principal debt. The company's argument that it was not a member of the process at the specified case, it does not matter to resolve this dispute, since the court decision was established by the Company's debt, respectively, the company had the right to consider his demands on debt payments to the company. However, since the company lost its right to the company's requirements to the Company, the company has the right to consider his requirements from him to the company, society in accordance with Article 412 of the Civil Code of the Russian Federation (decision of the Arbitration Court of the Arkhangelsk Region of October 30, 2006 in case No. A05-9381 / 05 -3).
According to Part 2 of Article 69 of the APC RF, the circumstances established by the judicial act of the Arbitration Court on the previously considered, are not proved again when considering the arbitration court of another case in which the same persons participate.
Accordingly, formally, the cessingionary is not associated with this decision and can independently defend themselves against the claim - to provide additional arguments and evidence. But in fact, Cēsis is there is no such possibility. If a solution has already been made on the dispute between the cedent and the debtor, the court will not listen to the arguments of the cessionary and the counterclaim, in fact, becomes fictitious (for the dispute in legal relations has already been eliminated). And then the question arises: why in general, in such a situation, to make a suit to the cessionary, if the debts of the cents do not go and on the dispute between the cedent and the debtor there is already a solution? At the moment, this question remains unanswered.
Summing up, I would like to note the following. As judicial practice shows, in the event of a concession, the debtor's claim, who wants to exercise his counter-claims against the requirements of the initial creditor, must submit a counterclaim to the plaintiff under the initial claim. If the plaintiff is a cessingionary, then he will remain the defendant on the oncoming claim of the debtor. However, if the debtor presented a counterclaim before the initial creditor gave way to the right demand, the defendant will be a cedent. In this case, the court simultaneously considers claims with different subjects, and subsequently the offset is carried out.
In judicial practice, the following position is sustainable: despite the fact that the defendant in the opposite claim is a cessionary, the debts of the cents do not go to it. At the same time, the right of the debtor on the offset against the requirements of the cessionary of its requirements for the initial lender is not questioned. However, judicial practice often suggests in such a situation to meet counterclaims only on indisputable requirements, while the very concept of undisputed requirement in judicial practice is not disclosed.
Full text Art. 138 Code of Civil Procedure of the Russian Federation with comments. New acting editorial With additions for 2020. Consultation of lawyers under Article 138 Code of Civil Procedure of the Russian Federation.
The judge takes a counterclaim if: The counter request is aimed at testing the initial requirement; satisfaction of the counterclaim shall exclude fully or in terms of satisfaction of the initial claim; there is mutual relationship between the oncoming and initial claims and their joint consideration will lead to a more rapid and correct consideration of disputes.
Commentary on Article 138 Code of Civil Procedure of the Russian Federation
1. The conditions provided in the commented article, the conditions for adopting a counterclaim are dictated by the feasibility of joint consideration of only such mutual claims of the plaintiff and the defendant who are interconnected. Adoption independent claim The defendant to the plaintiff in an already emerged process that did not associate with the original claim would complicate the procedure for the permission of civil case, could lead to a violation reasonable deadlines legal proceedings, infringement of the rights and legitimate interests of the plaintiff and other participants in the process.
2. The relationship between the material and legal claims of the Parties is obvious if the counter request is aimed at testing the initial requirement. The possibility of termination of the obligation to the offset of the counter homogeneous requirement is provided, in particular, Art. 410 of the Civil Code of the Russian Federation.
The defendant can be implemented by the will of the initial demand not only with the presentation of the counterclaim, but also in the form of objections. Taking into account the principle of disposition of civil proceedings, the right to choose in this case belongs to the defendant itself.
At the same time, in size, the offset may correspond to the original requirement, be less or more of it. It is quite obvious that in the first case, the informed objection of the defendant will entail a complete refusal to satisfy the claimant's demand, and in the second case, the lawsuit will be satisfied in part, but in both cases the defendant will fully protect his rights.
In the case of a larger test, the defense of the respondent's rights will be incomplete, since the court, with the prognosis of objection, refuses the plaintiff to satisfy his demand, but it will not be entitled to recover in favor of the defendant to him the difference in the material and legal obligation of the parties. At the same time, the presentation of the counterclaim will ensure complete protection of the respondent's rights, since the court will be obliged to make a decision also at the request of the defendant to the plaintiff.
3. Common cases of accepting the counter request of the defendant to the plaintiff in judicial practice are such when the satisfaction of the counterclaim excludes completely or in terms of satisfaction of the original claim. Actually, the offset, despite its specifics, acts as a particular case of such interrelationships of the mutual requirements of the parties in the controversial material legal relationship.
Examples of counterclaims not aimed at testing initial requirements, but excluding their satisfaction, diverse. For cases of recovery of alimony, the defendants sometimes make claims to challenging the recording on the paternity or transfer of a child to education, on cases of the section of hereditary property, countermark claims for the recognition of the certificate of the right to inheritance is invalid, etc. Issues of consideration of counter-requirements, the satisfaction of which excludes the satisfaction of the initial requirements, is often paying attention to the higher judicial instances countries.
So, plenum Supreme Court Of the Russian Federation in paragraph 11 of the decision of November 5, 1998 N 15 (as amended from February 6, 2007, N 6) "On the application by the courts of legislation, when considering cases of termination of a marriage, explained that the court had the right to consider the court in the proceedings A counter claim for the recognition of marriage is invalid.
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BVD of the Russian Federation. 1999. N 1; 2007. N 5.
4. In the last paragraph of the commented article, other cases of the relationship of mutual material and legal claims of the parties in the emergence of the dispute, which are not covered by the previously called conditions for adopting a counterclaim. Most often, they are related to the fact that the oncoming and initial requirements arise from the same legal relationship.
An example of such interrelations of the oncoming and initial lawsuits are the requirements of another spouse for the divorce affairs to recover alimony for children, determine the size of the content on themselves, divided common property. And if by general rulestipulated by the last paragraph of Art. 138 GPK, the mutual relationship between counter and initial claims is the basis for the adoption of the counterclaim only if there is a judge that the joint consideration of the Parties will lead to a more rapid and proper consideration of disputes, then on the divorcement of marriage, the joint permission of these requirements - the duty Courts by virtue of the requirements of the law (Art. 24 of the RF IC). The exceptions are only cases when the property section affects the interests of third parties, and therefore the court has the right to allocate the requirement for the division of property into separate production.