As is known, the purpose of civil proceedings is the protection of violated or contested rights, freedoms and legitimate interests of citizens, organizations, the Russian Federation and its subjects, municipalities and other persons related to subjects of civil, labor and other legal relationships. Proceeding from this, the court is obliged not only to properly and timely review and resolve the civil matter, but also to commit actions aimed at the real enforcement of the law enforcement act in the future (cautio iudicatum solvi). This task corresponds to the procedural institution of securing the claim.
With the application for securing the claim, all persons participating in the case have the right to apply after the initiation of civil proceedings and up to the issuance of a court decision, justifying why the failure to take measures to secure makes it difficult or impossible to execute the final court record
. As further explained in paragraph 29 of the Resolution of the Plenum of the Supreme Court of the United States of 24.06.2008 No. 11, as Art. 139 ГПК allows securing the claim in any state of the matter, the judge should keep in mind that the securing of the claim is possible even in the course of preparing the case for trial. In the conditions of judicial proceedings on the basis of adversarial and equal rights of the parties, the judge does not have the right, on his own initiative, to take measures to ensure the claims stated by the parties. Taking into account the requirements of Part 3 of Art. 140 of the Code of Civil Procedure, the judge, while allowing the measures to secure the claim at the stage of preparing the case for trial, is not bound by the applicant's initiative and must ensure that the measures to secure the claim are proportionate to the claimed substantive requirements.
An application for securing a claim can be set out both in the statement of claim and in a separate application, it is considered by the judge on the day of its receipt without notifying other persons participating in the case, including the defendant, as defined in which indicates what specific measure (measure) the court chose. This definition is enforced immediately in the manner prescribed by the Law on Enforcement Proceedings, by issuing to the plaintiff the writ of execution. An open list of interim measures of protection is as follows:
- the seizure of property belonging to the defendant and located with him or others;
- prohibiting the respondent from taking certain actions;
- prohibition to other persons to perform certain actions relating to the subject of the dispute, i.e. transfer property to the respondent or perform other obligations with respect to him;
- the suspension of the sale of property in the event of a claim for the release of property from arrest (exclusion from the inventory);
- suspension of recovery of an enforcement document challenged by the debtor in court;
- other measures, for example, when considering disputes on inheritance, the court has the right to resolve the issue of suspension of the issuance of a certificate of the right to inheritance (clause 3 of Article 1163 of the Civil Code).
The measures listed are equivalent, but they should always correspond to the nature of the material legal relationships that have developed between the parties. At the same time, the violation of measures leads to different responsibilities: non-compliance with the second and third prohibitions entails imposition of a fine for the respondent and others. Moreover, the plaintiff has the right to demand compensation from these entities for losses caused by non-enforcement of the court's decision on securing the claim. In other situations, it is envisaged to use the procedure fixed in the Law on Enforcement Procedure, according to which an application is filed to contest decisions, actions (inaction) of the bailiff in a court of general jurisdiction in which the corresponding bailiff performs his duties.
The court immediately informs the bodies of state power and local self-government registering property or rights to it, their restrictions (encumbrances), transfer and termination. So, when arresting immovable property, the court, guided by Federal Law No. 122-FZ of July 21, 1997, "On state registration of rights to immovable property and transactions with it", is required to notify the registration chamber so that in the Unified State Register of Rights to Immovable Property and transactions with him, an entry was made on the limitation of the defendant's right of ownership in respect of the property.
Sometimes in practice it becomes necessary to replace some measures to secure a claim by others, in these cases any person participating in the case, and not only the plaintiff can ask the court to make a replacement. In particular, the defendant in his own application can indicate that the security measures applied to him unjustifiably infringe on his subjective powers, entail material damage. When securing an action to collect a monetary sum, the defendant, instead of the measures taken by the court, is entitled to pay the amount claimed by the plaintiff to the court account.
Since the interim measures are generally directed against the defendant, the legislator has provided some means of protecting his property rights and interests. First, the court, at the request of persons participating in the case (formerly only the defendant), or on its own initiative is authorized to cancel the security of the claim. The CCP does not provide the reasons why this action is carried out, apparently, with the disappearance of the circumstances that caused certain bans, and the absence of objections on the part of the plaintiff (V. V. Kalinin). In case of a refusal to satisfy the claim, the security measures taken are retained until the court decision comes into legal force, but the court simultaneously with the adoption of the final law enforcement act in the case or immediately after its adoption can make a determination on canceling measures to secure the claim, which is notified to state institutions and bodies of local self-government.
Secondly, the defendant after the entry into legal force of the court decision, which the suit was denied, has the right to bring an action against the plaintiff to recover damages caused to him by measures to secure the claim. In turn, the court, allowing for interim measures, may also require the plaintiff to provide collateral for the defendant's losses, which fully agrees with the principle of equality of arms. Unfortunately, the procedural law does not clarify one important aspect: whether the defendant has the right to compensation for damages if the measures for securing the claim took place on the initiative of the plaintiff and other persons participating in the case, for example, the prosecutor. In this regard, it is advisable to refer to the decision of the Constitutional Court of the United States of 14.02.2002 No. 4-P and draw the following conclusion: since the prosecutor is dependent in his activity on the plaintiff's opinion when deciding on the issue of interim measures, the compensation of damages still lays a burden on the plaintiff.
A private complaint can be lodged with all court rulings relating to a procedural institution, such as securing a claim, by persons participating in a case, within 15 days (Article 332 of the CCP). If the ruling of the court was made without the notice of the person filing the complaint, the period for filing it is calculated from the day when the person became acquainted with this definition. The handling of a private complaint does not suspend the execution of the determination on interim measures, except for the determination to rescind the security of the claim or to replace certain measures with others.
How to ...
We made your life easier with putting together a big number of articles and guidelines on how to plan and write different types of assignments (Essay, Research Paper, Dissertation etc)