Legal encyclopedia. The letter O

LEAVING A CLAIM APPLICATION WITHOUT CONSIDERATION

- one of the forms of the end of the trial without a court decision. This institution found its confirmation in the Civil Procedure and Arbitration Procedural Codes. Codes contain an exhaustive list of reasons for leaving the application without consideration. So, according to Art. 222 of the Code of Civil Procedure of the Russian Federation the court leaves the application without consideration if:

1) the plaintiff failed to observe the pre-trial procedure for settlement of the dispute established by the federal law for this category of cases or the pre-trial order of dispute settlement provided by the contract of the parties;

2) the application was submitted by an incompetent person;

3) the application is signed or filed by a person who does not have the authority to sign or present the claim;

4) in the production of this or another court, the arbitral tribunal there is an earlier initiated case on the dispute between the same parties, on the same subject and on the same grounds;

5) there is an agreement of the parties to transfer this dispute for consideration and permission of the arbitral tribunal and from the defendant prior to the commencement of the consideration of the case, in fact, an objection was raised regarding the consideration and resolution of the dispute in court;

6) the parties, who did not ask for the proceedings in their absence, did not appear in court on a secondary call;

7) the plaintiff, who did not ask about the proceedings in his absence, did not appear in court on a secondary summons, and the defendant does not need to consider the case on the merits.

In addition to the listed reasons, art. 148 APC RF provides as such the following circumstances:

1) if, when considering an application for the establishment of facts having legal significance, it turns out that a dispute arose over the law;

2) if a claim is filed that, in accordance with the federal law, must be considered in the bankruptcy case.

Institutions of leaving the application without consideration and termination of proceedings in the case are not identical concepts. O. Z. without R. and the termination of proceedings in the case is possible at any stage of the arbitration process after it is instituted when the arbitration court ascertains the relevant grounds. Both institutions contain an exhaustive list of grounds for their application that are not subject to broad interpretation. In case of leaving the application without consideration and in the event of termination of proceedings in the case, the court issues a ruling that can be appealed to higher authorities in accordance with the procedure established by law.

The distinction between OZ without R. and the termination of proceedings in the case is held on the grounds and on the legal consequences of these actions.

Termination of the proceedings in the case deprives the party of the opportunity to re-apply to the court with the identical claim, while OZ without R. gives the party the right to re-apply to the court for judicial protection with a similar claim: between the same parties, for the same subject And the same bases. However, a second appeal in this case is possible only if the circumstances that served as the basis for leaving the application without consideration are eliminated.

The question of OZ without R. is resolved by a court of general jurisdiction or by an arbitration court in a court session.

In the case of OI Z. without R. the proceedings in the case end with the issuance of a ruling. In this definition, the court is obliged to state the reasons for the decision and the procedure for eliminating the circumstances that served as an excuse for leaving the application without consideration. In addition, in Art. 149 APC RF provides that in the determination of the arbitral tribunal indicates the grounds for leaving the claim without review, as well as decides whether to return the state fee from the federal budget in the case provided for in § 2 of Art. 148 of this Code.

Copies of the definition are sent to the persons participating in the case. In accordance with paragraph 2 of Art. 223 of the Code of Civil Procedure of the Russian Federation after the circumstances that served as the basis for leaving the application without consideration are resolved, the interested person has the right to apply again to the court in a general manner.

Since the decision to leave the application without consideration excludes the possibility of further movement of the case, it can be appealed in the general procedure in the appeal, cassation and supervisory instances in accordance with the current procedural legislation.

In accordance with paragraph 3 of Art. 223 of the Code of Civil Procedure of the Russian Federation, upon the petition of the plaintiff or the respondent, the court revokes its definition of OZ without R. on the grounds specified in para. 7 and 8 of Art. 222 of this Code, if the plaintiff or defendant submits evidence confirming the validity of the reasons for not appearing in the court session and the impossibility of reporting them to the court. A private complaint may be lodged with a court ruling on refusal to grant such a request. Such cancellation occurs at the petition of the plaintiff or the respondent if they submit evidence of the validity of the reasons for their absence in the court session.