The essence of the lawsuit and the concept of "initial...

The essence of the lawsuit and the concept of "initial lawsuit" and counterclaim

The proceedings are those regulated by arbitration procedural law and initiated by the presentation of an action by the court (judge) to review and resolve disputes on subjective law or legal interest arising from the implementation of entrepreneurial and other economic activities arising from civil legal relations.


The essence of the proceedings is as follows:

• it is brought on by filing a lawsuit in court;

• is regulated by the entire system of rules of arbitration procedural law;

• is directed to the consideration and resolution of disputes about subjective rights or interests protected by law;

• is intended for the resolution of matters subordinate to the court of economic disputes and other cases arising from civil legal relations in which the parties hold an equal position, not being in a relationship "power - submission."

The goal is to protect subjective rights and legally protected interests in ways provided by law.

The claim is the petition of the plaintiff (the alleged bearer of subjective substantive law) to the arbitration court with a request to consider and resolve the material and legal dispute with the defendant (the alleged bearer of a subjective duty) and to protect the violated subjective disposition or legally protected interest. This means and method of protection of subjective rights in the event of their violation or threat of violation, i.e. in the event of a material and legal dispute, but at the same time a way to initiate arbitration proceedings.

The dispute over the law underlying the claim may have different forms: the acknowledgment or denial of the plaintiff's right to the plaintiff, the denial of the existence of legal relations with the plaintiff, the failure of the defendant's obligations or improper performance thereof, etc.

The claim is central to the institutions of arbitration procedural law. The proceedings in terms of its importance and scope are the most important part of the entire arbitration proceedings and the procedural form of civil justice.

Elements of the claim. The claim in the arbitration process consists of elements that determine its content and individualize it: content, object and basis.

The content of the claim is the procedural action of the arbitration court, the commission of which the plaintiff requests, applying to the court for the protection of its violated or disputed right. This content is determined by the plaintiff on the basis of the type of judicial protection provided for by law (Article 11 of the Civil Code).

In accordance with this, the plaintiff can ask the court:

• about compelling the defendant to perform a certain action (for example, compensation of losses, payment of a monetary amount, transfer of a certain property) or abstention from any action;

• on the recognition of the existence or, conversely, the absence of any legal relationship, subjective right or obligation;

• about changing or termination (transformation) of the legal relationship between the plaintiff and the defendant.

The subject of the claim (which the claim is directed to) is a substantive dispute, which the plaintiff requests the court to examine and resolve. Since the dispute is always connected with the claim of the plaintiff to the defendant, in the statement of claim the plaintiff must indicate the essence of his claim (Article 125 of the APC).

Depending on the method sought by the plaintiff to defend his subjective substantive law, the subject of the claim may be a dispute:

• about the presence or absence of a material legal relationship between the plaintiff and the defendant;

• about the obligations of the defendant arising from the material legal relationship with the plaintiff;

• about changing or terminating the existing legal relationship between the parties.

The subject of the claim should be distinguished from the subject matter of the dispute. This is the material benefit that the plaintiff is seeking to obtain, for example, property requisitions, amounts of money, etc. The right of the plaintiff to reduce or increase the size of the claim requirements is connected with the subject of the dispute (Article 49 of the agrarian and industrial complex).

The basis of the claim is the circumstances on which the plaintiff bases his application to the court, which he must indicate in his application (Article 125 of the APC).

Despite the fact that the legislator does not impose any restrictions on the plaintiff's ability to justify the suit against him by any facts of reality, at the same time, only legal facts should be relevant - circumstances that lead to the emergence, change or termination of the legal relationship with which the relationship arises parties to a substantive dispute. The remaining facts are informative and do not reflect the outcome of the resolved dispute.

The basis of the claim is a combination of facts provided for by specific rules of law. It is in this sense that the term "cause of the claim" is applied by law. The basis of the claim usually consists not of one fact, but of some of their aggregate, which corresponds to the hypothesis of the rule of substantive law and is called the "actual composition".

The grounds and the subject matter of the claim are those attributes by which one claim differs from the other. On these elements it can also be established that the claim, despite the continuation of the case, after the plaintiff's change of the object or foundation has remained the same (internal identity). This is the individualizing significance of the basis and subject of the claim.

The individualization of the claim is necessary in cases where the court meets with the question of whether the claimed suit was previously accepted by another court for consideration or was not previously resolved by the court. To answer this important question it is necessary to establish whether there is an identity of the claim resolved (or resolved) by the court and the claim of the newly presented (external identity).

The claims in which the parties, the object and the foundation coincide are identical. In this case, the facts justifying the claim, individualize the legal relationship considered by the court only if they are committed until the time of removal of the court to the advisory room. The facts that have taken place after this moment create a new basis on which the action of the court decision does not extend.

The presentation of a counterclaim by the defendant. The defendant before the arbitration court of first instance of the judicial act, which ends the consideration of the case on the merits, has the right to file a counterclaim to the plaintiff for consideration of it together with the initial claim (Article 132 of the APC).

The presentation of a counterclaim is carried out according to the general rules of bringing claims.

A counterclaim is accepted by the arbitration court in the following cases, if:

1) the counter-claim is directed towards offsetting the initial claim;

2) the satisfaction of a counterclaim excludes, in whole or in part, the satisfaction of the original claim;

3) there is a mutual relationship between the counterclaim and the original claims and their joint consideration will lead to a more rapid and proper consideration of the case.

After accepting a counterclaim, the case is reviewed from the very beginning.

The arbitral tribunal has the right to return a counterclaim if there are no necessary conditions for its adoption (non-litigation of the dispute, if the requirements are not related to each other, etc.).

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