Full text Art. 138 Code of Civil Procedure of the Russian Federation with comments. New relevant revision 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. The adoption of an independent demand for the defendant to the plaintiff in an already emerged process that does not associate with the initial claim, would complicate the procedure for resolving the civil case, could lead to a violation reasonable deadlines legal proceedings, infringement of rights and legitimate interests 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 civilian 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 There 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 challenge the record of paternity or the transfer of a child to education, on the division of the section hereditary property A countermark claims are made on the recognition of the certificate of the right to the inheritance 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 about the divorce 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.
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 species, all general rules, all conditions ... Involimity 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, special rules are established, special conditions that are listed in a separate article - article 138 GPC, which is also called "Conditions for accepting 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 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 is a prerequisite: the requirement should 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 commercial employment contract was concluded between the parties. residential premises. 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 legal, and actual circumstances Costales 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 the state duty, is the statement of claim and so on ...
3. The counterclaim is an independent respondent tool. The defendant can also change the subject or the basis of his counterclaim, on this counterclaim the parties can conclude world 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.
Countercope as a way of holding a standby in disputes for recovery of debt on monetary obligations
Scope and general rules for applying
In practice business activities Quite often, the grounds arise to repay the oncoming homogeneous monetary requirements of economic entities. For example, organizations that systematically provide counter-friendly services carry out calculations, as a rule, according to the balance residue - the balance - in accounting of mutual obligations, that is, payments are made only in terms of the difference of the outstanding credentials. In cases where, with the termination of the obligation and closing of the contract, the debt of each side before the other is detected, the offset simplifies the execution of the termination contractual obligations With the payment of only the amount that remained an outstanding test. In the stock market, the test is actively applied in clearing, that is, in determining and repaying the mutual obligations of participants in operations with issuing securities. The question of using testing often arises in the practice of consideration by courts. economic disputes, mainly disputes for recovery
certifications on monetary obligations.
See: Review of the practice of resolving disputes related to the termination of obligations withdrawal oncoming homogeneous requirements. Informational letter of the Presidium of the Supreme Arbitration Court Russian Federation (hereinafter referred to as the text of the Russian Federation) dated December 29, 2001 N 65 // Information letters of the Presidium of the Russian Federation. Part I. M., 2003. P. 203 - 215.
The law does not exclude the credit under the court case. At least in Article 411 of the Civil Code of the Russian Federation (hereinafter referred to as the Civil Code of the Russian Federation), which lists cases of misunderstanding the test, is not indicated by a trial. However, as stated in this article, the offset is not allowed and "in other cases, provided by law or contract. "Such -" Other "- cases are possible. For example, one of the consequences of the introduction of the observation procedure in case of insolvency (bankruptcy) is the inadmissibility of the test on the debtor's monetary obligations, if the Federal Law established by paragraph 4 of the Federal Law No. 130 is violated. .2002 N 127-FZ "On Insolvency (Bankruptcy)" (hereinafter - bankruptcy law) Priority to meet the requirements of creditors (we will return to this issue below). But if the argument considered by the court does not apply to those cases when it is invalid by law. , and in the contract, from which the requirements arose, not
restrictions are reduced to conduct testing, the test is possible within the framework of the court case, but with certain very significant features.
See: Paragraph 1 of Article 63 of the Bankruptcy Law (Meeting of the Legislation of the Russian Federation. 2002. N 43. Art. 4190) with subsequent changes and additions.
Conducting in the framework of the court
First, if the court adopted to consider a claim for recovery from the defendant in favor of the plaintiff monetary sum, then the claim claimed in court can no longer be redeemed by the defendant by holding an office in extrajudicial unilaterally. The rule of article 410 of the Civil Code of the Russian Federation that "for the testing of a sufficient statement of one side," is not applicable after the initiation of the case in court, since the right-purpose of the parties passed into the scope of justice or even the arbitration and the arising disagreement should be settled in the established procedural procedure. The procedural procedure for resolving disputes with a private field nature limits the legal possibilities of the arguing parties. In particular, the defendant's statement about the repayment of the claim against him, which was made after the initiation of the case by the court, will not lead to the termination of the obligation and will not appear to the basis for refusal. In this regard, it seems that the rule of article 410 of the GC
The Russian Federation is advisable to supplement the reservation: "Except in cases where the requirement has been made to the debtor, a court or arbitration court".
Secondly, if, objecting against the claim against him, the defendant will refer to the fact that the statement of the plaintiff was redeemed before the initiation of the case in court, then the evidence of the testing of unilaterally should be presented, namely: 1) received by the defendant from plaintiff requirement of debt payment; 2) sent by the defendant the plaintiff a statement on the repayment of the oncoming homogeneous claimant to the defendant with the defendant to the claimant; 3) Documentary evidence that the plaintiff must defend a certain amount of money. In the presence of these documents, the defendant does not need to make a counterclaim; The court will solve the dispute, taking into account the submitted documents. If, before the initiation of the case in court, the test was not held, the defendant was entitled to use a counterclaim as a way to protect his interests.
Thirdly, after the presentation in the court of claim property, the repayment of this requirement is possible only in court and only by applying the defendant of the counterclaim.
About the counterclaim
The presentation of the counterclaim, according to part 2 of Article 132 of the Arbitration Procedure Code of the Russian Federation (hereinafter - the APC RF), is carried out under the general rules for the presentation of lawsuits, but the oncoming requirement should be directed "to the offset of the initial requirement", that is, in the spontaneous part of the oncoming claim for property The requirement must contain a claim for recovery from the defendant - the plaintiff on the initial (main) claim - a certain amount of money. At the same time, the counter of the counterclaim asks the court to take a counterclaim, consider it together with the original lawsuit and to make a test. If there are several cases in the production of the court of first instance, the requirements for which the ratio of initial and counter claims, the arbitral tribunal can combine these cases on their own initiative or by the petition of the person participating in the case (part 5 of Article 132 of the APC RF). (In counter-claims may contain non-property requirements, such as recognized
the treaties of the treaty, from which the initial (main) lawsuit is presented, invalid or inconclusive. IN this article Considers issues related to the presentation of countercading claims with property requirements. - approx. auth.)
Consideration within one case of the initial and oncoming lawsuits with counter homogeneous monetary requirements gives the court the opportunity to make a test, that is, to recognize both requirements - and on the initial, and on the oncoming claims - in the equilibrium amounts redeemed and recover from the obligious person in favor of the other party The amount that remains an outstanding test. Such a conclusion follows from the paragraph of the second part 5 of Article 170 of the APC RF, which states that "with the fully or partial satisfaction of the initial and counter claim in the operative part of the decision, the monetary amount is indicated to be recovered as a result of the credit."
In a situation when in court, within the framework of one case, counter-homogeneous demands are considered, the conclusion of the parties to the settlement agreement is very promising. Such a settlement agreement could consist of two parts: in the first part there would be a statement of the validity of mutual requirements and the recognition of them was redeemed in an equalized amount of test; In the second part, the payment conditions for the part of the debt would be fixed, which remained an outstanding test: on installments of payments, payments, the amount of penalties for violating these deadlines and the procedure for its accrual. In the event of an adoption of a counterclaim with a homogeneous property requirement, the court, implementing its duty to take measures to reconcile the parties and to promote the settlement of the dispute (part 1 of article 138 of the APC RF), must certainly offer to the parties to conclude a global agreement on the standings of mutual requirements.
According to A.V. Egorova, "... correctly called a test in his own sense of the word only a test, carried out by a unilateral statement of the person, but not contract, automatic, etc." . However, A.V. Egorov does not take into account the situation that develops when considering a counterclaim, when the offset is unilaterally impossible, and in the world agreement the parties can state the repayment of mutual requirements.
See: Egorov A.V. The German standings model in the Appendix to the Russian Realities: Theory and Practice // Bulletin of the Way of the Russian Federation. 2014. N 3. P. 6.
With the statement of the judgment of the World Agreement, the proceedings (part 2 of article 150 of the APC RF), and the additional incentive for the parties is the fact that, according to paragraph 3 of Part 7 of Article 141 of the APC RF, the plaintiff will be returned from federal budget half state dutyrequested by them when applying the original claim. The refund part of the state duty should be an incentive not only for the plaintiff, but also for the defendant's counterfeit law. Therefore, the rule of paragraph 3 of Part 7 of Article 141 of the APC of the Russian Federation after the words "state duty" it is advisable to supplement the following: "... And if the initial lawsuit was considered in one case with a counterfeit claim, then the defendant (the plaintiff on the oncoming claim) returns from the federal budget half State duty paid when filing a counterclaim. "
Features judicial trial Cases with joint consideration of the initial and oncoming claims containing mutual homogeneous property requirements are determined by the fact that in fact the court arises first of all the question of the standings - there is reason to produce a test or are missing. And only if the position of the court decides on this issue, the court proceeds to resolve the dispute on the merits. Based on this background, we analyze the problem of applying the test on specific example from judicial arbitration Practice.
Practice Complications
So, in cases that have arisen about (ultimately) shares of SMARTS CJSC (the Meshnevian Interregional Association of Radiotelecommunications Systems - one of the largest operators in the country cellular communication. The prehistory and the main circumstances of this case are set out in the decision of the Presidium of the Supreme Arbitration Court of the Russian Federation of September 6, 2011 No. 2929/11 and in the resolution of the Federal Arbitration Court of the North-West District (hereinafter referred to as the FAS SZO) of December 11, 2013 in case No. A56-44387 / 2006. About disputes that have arisen about shares of "SMARTS" CJSC has repeatedly been reported in funds mass media, as well as in legal literature. - approx. Aw.) who belonged to his shareholder - the company "Angentro", the following situation was established: in early 2005, one of the majority shareholders of SMARTS CJSC - the company "Angentro Trading & Investments Limited" (Cyprus) (hereinafter - "Angentro") - Received a loan in a bank on bail owned by him and some other major shareholders of Shares of CJSC "Smarts
"; The loan was not returned, in December 2005, the bank lost the right to require credit debt claim (" body "of a loan + interest + penalty) Sigma Capital Parts LLC (hereinafter referred to as the firm" Sigma "). In September 2006, the firm" Sigma "I am inferior to this requirement to another person - LLC" SOYUZINVEST "; then initiated judicial procedures:
Bulletin of the Russian Federation. 2012. N 3. P. 146 - 155.
See, for example: Lebedev K.K. Protection of rights of owners of non-documentary securities (material and procedural and legal aspects of dispute resolution associated with the alienation of non-documentary securities). M.: Volters Clever, 2007. P. 125 - 126, 133 - 137, 143 - 144.
In this case, the courts occupied an inconsistent position: the court of first instance was made a decision on refusal to the lawsuit, the FAS NWP supported the position of the court of first instance and left a decision without a change, but the Presidium of the WHERE of the Russian Federation, having considered the statement of Angentro on the revision of judicial acts in supervisory , by its decree dated September 6, 2011, canceled the case taken in the case judicial acts And he sent a case to a new consideration in the court of first instance. With a new consideration of the case, the Property Requirements of Angentro were partially satisfied, but in conducting the standings of the oncoming homogeneous requirements of the "Angentro" was denied. As mentioned above, in the case of N A40-65515 / 2007, the Arbitration Court of the city of Moscow satisfied the lawsuit of Sigma on the recovery of debt on the credit agreement from the company, and this decision entered into legal force.
Two decisions of arbitration courts on two counter homogeneous requirements
As a result, two decisions of arbitration courts appeared, which in this context could be called counter, because, by decision of the Arbitration Court of St. Petersburg and the Leningrad Region, a certain amount of money recovered from the company "Sigma" in favor of the company "Angentro", and by decision of the arbitration The city courts are close in size (somewhat smaller) money amount recovered from the company "Angentro" in favor of the company "Sigma". With equal legal position both organizations their counter-homogeneous demands to each other could be repaid in the main part of a test in an extrajudicial or judicial order. But now, since both court decisions have entered into legal force, the question has moved to the sphere. executive proceedings. In addition, in this particular case, the parties were in an unequal legal status, since relative to the company "Sigma" on the application of one of its creditors in the Arbitration Court of Moscow, the case of insolvency (bankruptcy) was initiated
. The definition of the Arbitration Court of the city of Moscow dated 21.04.2011 in case N A40-42471 / 10 in relation to the company "Sigma" was introduced the procedure of observation, and then by the decision of the same arbitration court of 10.10.2011 by the same case, the company "Sigma" was recognized as insolvent (bankrupt); The decision entered into legal force. In relation to the company "Angentro", the insolvency procedure (bankruptcy) was not excited; her legal status did not change.
Thus, as a result of the requirement of the company "Angentro" on holding a credit in the case of N A56-44387 / 2006, it remains without satisfaction, organizations having counter homogeneous monetary requirements to each other were in an unequal legal situation in terms of the possibility of executing joined In legal force of judicial acts. The decision of the Arbitration Court of the city of St. Petersburg and the Leningrad Region of 03.06.2013 in case No. A56-44387 / 2006 was appealed by both disputting parties. The company "Angentro" The decision was appealed only in terms of refusal to conduct a test, but by the decision of the thirteenth arbitration court of Appeal from 08.21.2013 and the decision of the FAS SZO dated December 11, 2013, in the same case, the decision was left unchanged, and complaints - without satisfaction. When assessing the current situation, it seems important to note the following circumstances. The case in the Arbitration Court of the city of Moscow on the suit of the company "Sigma" to the company "Angentro" was initiated later (
october 2007), after the Arbitration Court of St. Petersburg and the Leningrad Region, the case was initiated on the suit of LLC "Soyzinvest" to Angentro (October 2006). The replacement of the plaintiff in the case N A56-44387 / 2006 was produced in March 2009. From that moment on, both cases - in the Arbitration Court of the city of Moscow and the Arbitration Court of St. Petersburg and the Leningrad Region - became identical: the subject, grounds and parties completely coincided. Therefore, by virtue of paragraph 1 of part 1 of Article 148 of the APC of the Russian Federation, the Arbitration Court of the city of Moscow was obliged to leave the statement of claim of Sigma to the company "Angentro" without consideration, it was the Arbitration Court of the city of Moscow, and not the Arbitration Court of St. Petersburg and the Leningrad Region, Since, we emphasize once again, the case in the arbitration court of the city of St. Petersburg and the Leningrad region was initiated earlier than the same thing in the arbitration court of the city of Moscow, and the replacement of the plaintiff - LLC "SOYUZINVEST" - to the company "Sigma" was
and it was made even before the Arbitration Court of the city of Moscow ruled on the merits of the dispute. But the Arbitration Court of the city of Moscow did not and 06/09/2008 issued a decision N A40-65515 / 2007, satisfied the lawsuit of Sigma to the company "Angentro" in full. The decision was appealed, but it remains unchanged. As soon as it entered into force, the Arbitration Court of the city of St. Petersburg and the Leningrad Region, guided by paragraph 2 of Part 1 of Article 150 of the APC RF, ceased production according to the initial claim of the company "Sigma" to the company "Angentro"; Thus, the oncoming lawsuit to the firm "Sigma" stopped being counter, it was automatically transformed into the main, that is, the initial, lawsuit.
The company "Angentro" filed a statement of revision this solution For new circumstances, but also unsuccessfully.
There could be another basis for termination of production under the suit of the company "Sigma" - its refusal of the claim (paragraph 4 of part 1 of article 150 of the APC RF). It seems that in the case when in one case, together with the initial claim, a counterclaim, which was filed in order to apply the test in court, the refusal of the plaintiff may not be adopted by the court, since the initial claim is burdened by the oncoming basis and the cessation of production The initial lawsuit would be deprived of the defendant the ability to realize his right to repay the credentials charged to him. However, in this case, the initial lawsuit was discontinued on another basis - under paragraph 2 of part 1 of article 150 of the APC RF. This rule is the norm of imperative, so the Arbitration Court of St. Petersburg and the Leningrad Region received formally correctly. It is not by chance that his position in this issue was supported by the courts of appeal and cassation. But N.
if it was ignored, then an important circumstance that the counterclaim was filed by Angentro in order to repay the property claim of the company "Sigma" by holding a court. In the court order cassation instance from 11.12.2013 in case No. A56-44387 / 2006 it clarifies that, rejecting the petition of the company "Angentro" on holding the credentials of the requirements satisfied with the court in another case (N A40-65515 / 2007), "the courts proceeded from the fact that the arbitration procedural Code The Russian Federation does not contain the rules providing for the possibility of conducting such a test. "In the opinion of the court of cassation, if the court of first instance satisfied the petition of the company" Angentro "on holding a credit, he would violate procedural legislation, and" violation procedural norms It cannot be recognized as a proper way to protect the rights of shareholders of Smarts CJSC.
Such a justification is not indisputable. Courts did not indicate any special nor procedural legislationthat would be violated by holding the credit in this case. Specific norms are not specified here because in the current APC RF there are no rules prohibiting the holding of oncoming homogeneous requirements in cases considered by arbitration courts.
Let us return to our initial position, which is set out at the beginning of the present analysis: from systematic interpretation special norms about the standings - articles 410 - 412 of the Civil Code of the Russian Federation in their inseparable relationships with general provisionsenshrining a dosal nature of civil regulation - articles ,,,, and 12 Civil Code of the Russian Federation - it follows that the right to the application of the test for repayment of property requirements presented to it may be limited only in cases provided for in Article 411 of the Civil Code of the Russian Federation, and "In other cases provided for by law or contract." So the reference to the fact that in the APC RF there is no norm allowing the credentials of the requirements considered by different arbitration courts is untenable. It is notable in this regard that one of the tasks of legal proceedings in arbitration courts is the protection of violated or disputed rights and the law
interests of persons carrying out entrepreneurial and other economic activities (paragraph 1 of Article 2 of the APC RF). And the fact that the interests of the company "Angentro" are violated by Sigma, this is obvious, since it has been established that the latter, submitting a similar lawsuit to the Arbitration Court of the city of Moscow, allowed abuse procedural rights (See Decree of the FAS SZO dated December 11, 2013 in case No. A56-44387 / 2006). It is also obvious that the Arbitration Court of the city of Moscow, adopting Sigma's lawsuit and satisfying him, despite the fact that in the arbitration court of the city of St. Petersburg and the Leningrad region, a shared lawsuit was already considered, allowed gross violation both special norms and principles arbitration proceedings. It is surprising that such a decision, despite the complaints of the company "Angentro", the courts of higher instances are left unchanged and entered into legal force. (It is also strange that, noting the abuse of procedural rights from the company "SIG
ma ", the courts did not respond to the last few years actions of the company" Sigma "in relation to CJSC Smarts, expressed in submission to various courts of numerous claims with applications for the use of interim measures, which, as a rule, were satisfied. These actions of the company" Sigma " are nothing more than an attempt to raider capture with judicial procedures A highly profitable operator of cellular communication, and therefore deserve an appropriate assessment by the courts who considered the disputes initiated by Sigma. - approx. However, it nevertheless, the presence of this decision did not prevent the testing in the case considered in the Arbitration Court of St. Petersburg and the Leningrad Region.
The question is how it could be credited and how practically it could be implemented. Recall that the amount of the requirements of the company "Angentro", recognized by the court, exceeded the amount of the requirement of the company "Sigma" on a certain amount "M". It seems that in the operative part of the decision of the Arbitration Court of St. Petersburg and the Leningrad Region, it would be necessary to indicate that the requirement made by Sigma to Angentro affects the competence of the oncoming homogeneous requirement of the company "Angentro" to the firm " Sigma, "in connection with which the claim of the company" Angentro "to the company" Sigma "is consistently satisfied: from the company" Sigma "in favor of the" Angentro "company charges the amount of" M ", in the rest of the oncoming mutual obligations of the parties are represented by redefined.
The problem of credit in the execution
In an analyzed concrete example, the problem of the testing of the oncoming homogeneous requirements of "Angentro" and the company "Sigma" went into the sphere forced execution Entering the decisions of arbitration courts. We will try to answer the question: is it possible to use the credential in the field of enforcement proceedings and how could it be produced? In our opinion, the answer to the first part of the question should be positive because existing legislation (Of the Civil Code of the Russian Federation, federal laws of 21.07.1997 N 118-FZ "On the bailiff" and from 02.10.2007 N 229-FZ "On Enforcement Proceedings" (hereinafter - the law on enforcement proceedings), the APC RF) there are no standards prohibiting Startup in the execution of judicial acts. The question is, therefore, it is not possible to test or not, but what is the mechanism of testing in the executive production. It seems that this mechanism or the procedure for holding a test could be as follows: after excitation
the debtor reports to the bailiff of the bailiff, the debtor informs the bailiff that contains receivables in such an assets and this receivable debt is nothing but the debtor's debtor's debtor . Moreover, the accounting of this receivational debt as part of the property of the debtor (in this case, it is referred to in mind the relationship between Sigma and Angentro) is based on the decision of the Arbitration Court that entered into force. In this regard, the debtor asks the bailiff to draw a penalty on the executive list on this receivable debt and to test the oncoming homogeneous requirements.
In part 5 of Article 69 of the Law on Enforcement Proceedings, it was said that "the order of recovery to the debtor's property is determined by the bailiff." It seems that this rate needs to be adjusted. In cases where the debtor, with respect to which enforcement proceedings, there is a counter-property requirement for a recovery, recognized by the court decision, and this property requirement is properly decorated in the system. accounting The debtor as receivable debt, first of all, the recovery on the request of the debtor must be addressed to receivables. Such is the logic, otherwise the balance of interests of the recoverer and the debtor will violate and the fundamental principles on which modern civil law is based - equality of participants adjustable relationships and unhindered exercise civil rights, rationality and justice.
Article 83 of the Law on Enforcement Procedure provides for the procedure for imposing arrest on receivables, and in Article 76 of the same law - the procedure for adding recovery for receivables. In particular, having received the decision of the bailiff, the management organization is obliged to make (list) the appropriate amount on the Deposit Account specified in the Resolution bailiffs. (Federal law of 21.12.2013 N 379-FZ "On Amendments to Selected legislative acts Of the Russian Federation "Chapter 45 of Part 2 of the Civil Code of the Russian Federation supplemented with provisions on two new species of a bank account agreement - a nominal account agreement (Articles 860.1 - 860.6) and the ESCRO account agreement (Articles 860.7 - 860.10). Since cash is transferred to the deposit account of the bailiff service. Debtor, designed for the recoverer, depository relationship
the account is covered by the concept of an Escrow account agreement, the definition of which is given in Article 860.7 of the Civil Code of the Russian Federation. - approx. Avt.) Such a fulfillment of the obligation to the debtor, according to part 6 of Article 76 of the Law on Enforcement Proceedings, will be considered the fulfillment of the proper lender. The amount received from the debtor is then listed from the deposit account of the bailiff division to the bank account of the recoverer.
But in cases where the debtor is not anyone else, as a recoverer on the executive list, there is no need to produce the specified transfers, since the debtor listed (it is also a recovere) on the deposit account of the bailiff service, the money will return to him. Instead of these unnecessary transfers, it follows in the application of the debtor to test the oncoming homogeneous claims of the debider and debtor.
Of course, as emphasizes L.V. Belousov, in the executive production of the debtor, even voluntarily fulfilled the requirements of the executive document in set time, it is not entitled to determine the order and order of repayment of debts. But if it is possible to pay off the debtor's obligation a testament and the debtor insists on holding a credit, the bailiff does not have the right to ignore such an opportunity. About completed competition bailiff will be an act and give it instances to both parties. Based on this act and in the execution of the completed creditor, the debtor will write off the balance of payables before the recoverer and receivables of the recoverer in the amount of the amount redeemed; The same will make a recoverer - will write off the balance of payables in the debtor in the discount of the part and, accordingly, the debtor receivables. Certificate of write-off from their balance sheets of receivables and payables
they will be transferred to the bailiff, who, upon receipt of both references, will decide on the termination of the enforcement proceedings, if the demand for the recoverer is redeemed completely.
See: Belousov L.V. Distribution by the bait of the executive money: Problems of judicial arbitration // Vestnik of the Russian Federation. 2013. N 3. P. 51 - 60.
In order for the practice of enforcement proceedings, there were no difficulties and discrepancies, it is necessary to supplement Article 76 of the Enforcement Enforcement Act, paragraph 8 of the following content: "8. In cases where the debtor declares the application for the recovery of the collection primarily on receivables and the repayment of the presented Requirements for it is a test, since the debtor is the recoverer, the bailiff is repayment of a requirement to the debtor on the executive list in the amount equal to the recoveors of the recoverer, which is drawn up by the act sent to the recoverer and the debtor to write off the receivables and payable debts from their balance sheets.
The possibility of credit after the initiation of the insolvency (bankruptcy) of the debtor
As noted above, according to paragraph of the sixth of paragraph 1 of Article 63 of the Bankruptcy Act, "the debtor's monetary obligations is not allowed by testing the oncoming homogeneous requirements if this federal law is violated by paragraph 4 of Article 134 of this Federal Law, the order of satisfaction of creditors' requirements." Also accurately when calculating with creditors during competitive production The requirements of the requirement "is allowed only if the priority and proportionality of meeting the requirements of creditors" (paragraph of the third of paragraph 8 of Article 142 of the Bankruptcy Law). The meaning of these rules is obvious: not only the monetary obligation of the debtor will be redeemed, but also the counter demand for the debtor of one of his counterparties. Therefore, it is no doubt that the offset in case of insolvency (bankruptcy) is possible, but only in compliance with the lawsuits established by the law to meet the requirements of the claims.
The paragraph of the sixth paragraph of paragraph 1 of Article 63 of the Law on Bankruptcy in need of clarification. First, we are talking about the monetary obligation of the debtor to a certain competitive lender. Secondly, this monetary obligation should be bilateral, mutual, that is, this competitive creditorIn turn, there should be money debt to the debtor's organization. Thirdly, for clarity, the issue of bankruptcy laws should be shown to shift the focus on repayment (termination) monetary obligation On the repayment of the oncoming homogeneous monetary requirements of the debtor and a certain competitive lender.
If the documents are revealed that a relatively specific competitive lender has a monetary requirement, which in the accounting system is in the accounting system as receivables, the Arbitration Manager establishes, to what queue from the point of view of the order to meet the requirements of creditors, according to the register of creditors' claims, refers to the requirement of this particular lender. If this requirement refers to the queue of satisfaction of creditors' claims, according to which calculations should be made in accordance with the definition of the arbitral tribunal, then obstacles to the use of the test are disappeared. Under such circumstances, the offset is made by the Arbitration Manager. It must determine the amount of the requirement of the competitive lender, which can be redeemed by the test, taking into account the established arbitration court proportionality to meet creditors' claims. Having calculated this size, the arbitration manager is an act of redeeming the requirements of this
on boss lender in the amount of the calculated amount of credit in the same size of the oncoming homogeneous demand of the debtor to this competitive lender. In the amount redeemed, the monetary commitment of the debtor before this competition creditor is terminated; recognized in the accounting system of the debtor organization receivables and payable debt Regarding this competitive lender, they are debated from the balance in the amount redeemed.
So the company "Angentro" has a legal opportunity to terminate the monetary obligation to the company "Sigma" both during the enforcement proceedings and during the operation of the competitive production procedure relative to the company "Sigma". The use of credit as a method of protection of the right would allow the "Angentro" company to avoid appeal to the recovery to the shares owned by it "SMARTS". In our opinion, it would be advisable to provide in the laws of insolvency (bankruptcy) that in the implementation of settlements with creditors during competitive production, if the grounds for testing the oncoming homogeneous requirements of the bankruptcy creditor and the debtor are revealed, the bankruptcy trustee is obliged to conduct an offset for termination of monetary obligations Debtor before a competitive lender.
Lebedev K.K., Associate Professor of the Law Faculty of St. Petersburg state University, Candidate of Legal Sciences.
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 relationship of cases, as well as compliance with the law provided by the law.
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 duties, the implementation period 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 judicial decision give a response essentially all claimed claims, as an initial claim, and oncoming.
The disadvantages of this form include compliance with the respondent requirements for form and content of the statementas well as requirements for 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 case: the court arises the right and duty in established by law Terms to consider and resolve a specific case;
2. The plaintiff is entitled to commit all the necessary procedural action To resolve a specific declared 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.
Article 138 Code of Civil Procedure of the Russian Federation, the judge takes a counterclaim in case:
- The counter request is aimed at testing the initial requirement;
- satisfaction of the counterclaim excludes in full or in terms of satisfaction of the initial claim;
There is mutual relationship between the counter and initial claims and their joint consideration will lead to a more rapid and proper consideration of disputes.
1. Provided for by Article 138 Code of Civil Procedure of the Russian Federation oncoming law dictated by the feasibility of joint consideration only such mutual requirements plaintiff and defendant which are related to each other. The adoption of an independent demand for the defendant to the plaintiff in the already emerged process that does not affect the initial claim, would complicate the procedure for the permission of civil affairs, it could lead to a violation of reasonable terms of legal proceedings, infringement of the rights and legitimate interests of the plaintiff and other participants in the process.
2. If a counter demand The defendant is directed to the offset of the initial requirement (i.e. contained in a statement filed by the plaintiff). Wherein need to be guided Rules art. 410-412 Civil Code of the Russian Federation, if the requirement arises from civil obligations and art. 78 NK RF, if the dispute arose from the tax relations.
The relationship between the material and legal claims of the Parties is obvious if the counter requirement 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 depreciation of the abuser Requirements not only presenting a counterfeit, but and in the form of objection. Taking into account the principle of the disposition of civil proceedings choice right in this case belongs Self defendant. However, in size, the offset may correspond to Initial requirement, be less or more his. It is quite obvious that in the first case, a reasonable objection defendant will entail a complete refusal to satisfy the claimant's requirements, but in the second case, the claim will be satisfied in partbut in both cases with his objection defendant Fully will protect their rights. When Same larger duration of the protection of the respondent's rights will be incomplete, since the court With the proof of objection refuses the plaintiff in satisfaction of his requirements, but not entitled will be recover due to him differenceaccording to the material and legal obligation of the parties. In the same time the presentation of the counterclaim will ensure the full protection of the rights of the defendant, insofar as the court will be obliged to make a decision also at the request of the defendant to the plaintiff..
3. If satisfaction oncoming demand excludes the satisfaction of the initial claim: completely. In other words, from the content of the counterclaim It is that the requirements of the respondent in volume or equal, or even exceed the claimant's requirements; partially. In this case judge By analyzing counterfeit Calculate, what satisfaction of the respondent's claim (contained in the counterclaim) reduce the scope of claimant.
Common cases adoption of the counter request of the defendant to the plaintiff in judicial practice are those when satisfaction of the counterclaim is excluded in whole or in terms of satisfying 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 oncoming lawsuits, uneasy initial requirements but excluding their satisfaction, diverse. By Affairson the recovery of alimony The defendants sometimes impose claimsabout challenging the paternity record orchild's transfer to education , by affairsabout the section of hereditary property Posted by counter Iquins on recognition of the testimony about the right to inheritanceinvalid and so on.
4. If between initial and counter art Available mutual communication (for example, the plaintiff requires the return of his property from a bona fide acquirer, and the last - compensation of property costs produced by him, Article 302, 303 of the Civil Code of the Russian Federation) and besides, the judge establishes, what joint consideration of lawsuits will lead to a more rapid and proper consideration of disputes.
These are cases of communication of the mutual logistical claims of the parties in the arisen dispute, which are not covered by the previously named making conditions oncoming law. Most often they are connected with the fact that counter and initial requirements leak 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 on children, determine the size of the content on themselves, divide the common property. Moreover, if the general rule provided for in the last paragraph of Art. 138 GPK, the mutual relationship between the counter and initial claims is the basis for accepting a counterclaimonly in the presence of the judge's withdrawal that the joint consideration of the requirements of the Parties will lead to a more rapid and proper consideration of disputes, then on the divorce of the marriage, the joint permission of these requirements is the obligation of the court 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.
59. Claim measures to ensure
Providing a claim- one of the guarantees of the protection of citizens' rights and legal entities Through the application of legislatively enshrined measures contributing to the future execution of the court decision.
Grounds for ensuring a claim- Statements of persons participating in the case. The application for ensuring the claim is considered on the day of his arrival in court without the notice of the defendant, other persons participating in the case. The adoption of measures to ensure the claim judge or the court makes a definition. Based on the court definition of the Claim, the judge or court issues the plaintiff performance list And directs the defendant a copy of the court definition.
The measures to ensure the claim may be:1) the overlaying of arrest on property belonging to the defendant and in him or other persons;
2) Prohibition of the defendant to perform certain actions;
3) prohibition to other persons to make certain actions relating to the subject of the dispute, including to transfer property to the defendant or to fulfill other obligations in relation to it;
4) suspension of property implementation in the case of a claim for the release of property from arrest (exclusion from OTICI);
5) suspension of recovery executive document, challenged debtor in court.
In disruption of the prohibitions established by the court, the perpetrators are subjected to a fine of up to 10 installed federal law minimum sizes wage. In addition, the plaintiff is entitled to judicially require these persons to compensate for damages caused by the failure to define the court to ensure the claim.
Measures to ensure the claim must be proportioned by the claimed claim.
According to the application of the person participating in the case, it is allowed to replace some measures to ensure the claim by others.
When providing a claim for the recovery of the monetary amount, the defendant instead accepted by the court Measures to ensure the lawsuit is entitled to deposit the claimant to the court.
At the same time, the provision of a claim may be canceled by the same judge or court at the request of the defendant or on the initiative of the judge or court. The question of the cancellation of the claim is allowed at the court hearing. Persons participating in the case are notified about time and place court sessionHowever, their non-appearance is not an obstacle to the consideration of the abolition of the claim.
In case of refusal to suit, the measures taken to ensure the claim are preserved before the decision of the court decision becomes. However, the judge or court simultaneously with the adoption of a court decision or after its adoption can make the definition of a court on the cancellation of measures to ensure the claim. When satisfying the claim, the measures taken to ensure its own action before the execution of the court decision.
The abolition of measures to ensure the claim judge or the court immediately reports to the relevant state bodies or organs local governmentsregistering property or rights to it, their restrictions (encumbrances), transition and termination.
A private complaint may be filed for all court definitions to ensure the claim.
60. Forms of disposal of claim for protection
The court is not entitled to change the basis or subject of law on its initiative. In accordance with Art. 185. CGP court Allows the case within the claims declared by the plaintiff. Only in the form of an exception, the court may be beyond the limits of the claims announced by the plaintiff, if it recognizes it necessary to protect the rights and protected by the law of the interests of the plaintiff, as well as in other cases provided for by law. The title court said should not be interpreted expanding, because the excessive activity of the court in this area contradicts the principle of dispositionability. Speech can only be about the exit of the court outside the subject of the claim, and the amount related to themselves, if the relevant evidence is represented by the plaintiff.
2. Refusal to the claim. The refusal of the claim is the unconditional renunciation from its material and legal requirements for the defendant and their judicial protection. The plaintiff cannot refuse only from the desire of judicial protection of the right, without refusing the right. The plaintiff may refuse part of the claim if the requirement is delimo. Refusal of the claim is the one-sided administrative action of the plaintiff, which can be caused by various motifs. The court should not go into their assessment, but it is obliged to clarify the meaning and importance of actions accomplished and make sure that such a refusal is voluntary, and the will of the plaintiff is free from coercion. The adoption by the court of refusal of the claim implies the termination of the case without making a decision by production. Refusal of the claim of a prosecutor or another person who presented a lawsuit in protecting the interests of other persons does not deprive persons, in the interests of which it is declared, to require consideration of the case on the merits.
3. Recognition of the claim. Recognition of the claim is the defendant's unconditional consent expressed at the court to satisfy the court claims for him, which makes it possible to make a decision to satisfy the claim. His administrative act with respect to civil obligation the defendant voluntarily refuses procedural protection. By accepting recognition of the claim, the court puts it on the basis of its decision in favor of the plaintiff, referring to the motivation part of its decision. The legitimateness of the failure and recognition of the claim should be tested by the court. The court is not related to this will of the parties and may not accept them if they contradict the law or violate the rights and the interests protected by law of others. In accordance with Art. 34 and 165 of the Civil Procedure The Court is obliged to clarify the defendant the essence of the recognition of the claim and the procedural consequences of this action.
From the recognition of the claim should be distinguished by the recognition of an evidentiary fact. Recognition of one side of the facts in which the other Party establishes its requirements and objections, as a general rule frees the latter on the need to further proof these facts.
Recognition of the claim is the order of the material law that defend the defendant, recognizing the fact, this order is one of procedural means His protection.
