The AIC provides for alternative proceduressettlement of disputes. Often they allow participants in conflict relations to reach a consensus at the lowest cost. Let us further consider what pre-trial (claim) order is.
General information
The claim procedure for the settlement of disputes inarbitration court (art. 5, part 4 of the agrarian and industrial complex) presupposes the fulfillment of certain measures prior to the submission of the statement of claim to the authorized body. In accordance with this rule, it is mandatory for certain categories of cases. Arbitration law, therefore, does not allow the filing of a claim without its observance.
Characteristic
Pre-trial settlement of conflictsis a form of protection of rights. It consists in an attempt to find a mutually acceptable decision for its participants on the obligation that has arisen before the application is submitted to the authorized body. Arbitration practice shows that this method of eliminating the conflict is quite popular today. It is resorted to even in cases where its binding is not established by law.
Content
The claim procedure for the settlement of disputes inThe arbitration court is reduced to the following actions. The creditor (the future applicant) presents to the debtor (respondent) the demand for the fulfillment of the material and legal obligation accepted by the latter. The claim is drawn up in writing. It contains an indication of the obligation itself and a reminder that it must be repaid. The lender hereby establishes a reasonable period for the execution of the claim. After sending, he waits for an answer. The debtor can voluntarily pay off the obligation or offer his own version of his performance. If no response from him followed, and the obligation was not repaid, then it is considered that the lender complied with the claims procedure for the settlement of disputes. In the arbitration court, the timing will be of great importance in the consideration of the case. In the demand that the creditor directs, a reasonable period must be established, that is, one in which the debtor could repay the obligation. Pre-trial proceedings may involve the obligation of the creditor to apply to certain state authorities before filing a lawsuit.
Normative base
The claim procedure for the settlement of disputes inThe arbitration court is obligatory, if it is expressly stated in the law or it is established in the contract. It should be noted that the list of federal regulations that provide for the measures under consideration is quite extensive. Among them is the Civil Code. Art. 452 clause 2 provides that the requirement regarding the termination / amendment of the contract may be declared by the transaction participant only after they receive a refusal from the other entity for the relevant proposal or upon failure to respond within the prescribed time limit. If the latter is not set, then as a reference period, 30 days are accepted. As a classical example, Art. 797 CC. In accordance with the norm, prior to bringing an action against the carrier with a claim arising from the contract for the transportation of the goods, the creditor is obliged to comply with the claims procedure for the settlement of disputes. In the arbitration court the application will be considered only in the event of a partial or total refusal of the service organization to pay off the obligations or upon failure to receive a response within a month. The demand must be sent according to the rules established by the transport code or by the charter.
Specification of provisions
In some codes and statutes, the claims dispute settlement procedure is significantly expanded. In the arbitration court in the proceedings of the authorized officials are guided by:
- Charter of the railway transport of 10.01.2003 No. 18. In the art. 120 this normative act provides that, before filing a claim with a demand for a carrier, a claim is mandatory. It should be noted that this rule applies not only to cases of cargo transportation, but also baggage.
- Code of Merchant Shipping. In Art. 403 KTM it is determined that before submitting a lawsuit to a court, the creditor must present a debt to the debtor.
- Code of Water (Inland) Transport.In this normative act, the claim procedure has been substantially expanded. In particular, the Code says that before filing a lawsuit related to the transportation of baggage, passengers, cargo, as well as the towing of the object, it is necessary to make claims to the responsible persons. This provision is set in Art. 161.
- The Air Code. In Art. 124, point 3 It is established that the claim is obligatory before the claim in case of violation of the terms of the contract for the air transportation of cargo or mail.
- Charter of motor transport. In Sec.158 it is determined that, prior to the dispatch of the claim by the consignee / sender to the carrier (enterprise or organization), the presentation of the claim is mandatory. In this case, however, there are certain contradictions. First of all, this statute is not a federal law. In Art. 5 of Federal Law No. 71 regulating the introduction of the APC, it is determined that the above pre-trial procedure is applicable to cases that occurred before the approval of the relevant normative act. Meanwhile, according to Federal Law No. 96, Law No. 71 was recognized as of September 1, 2002, expired, except Art. 9. It follows from this that the aforementioned art. 5 also has no legal effect.
- FZ No. 126 and 176. In art. 55 and art.37, respectively, establishes the obligation to send a complaint to the operator by the communication user in the event of improper performance or failure to comply with the terms of the contract for the provision of services / work.
Additionally
As the arbitration practice shows, notIn all cases, it is possible to distinguish between the obligation of the creditor to forward the claims to the debtor from the so-called warning and proposal. The latter act as circumstances of a substantive nature, which, in turn, form the basis of the application and the subject of proof. In such cases, the claimant may require qualified legal assistance. Among the normative acts, which stipulate the direction of the above "warning", it is necessary to mention the Civil Code. For example, in Art. 286 it is established that a body of local or state authority, whose competence includes the decision to seize land in accordance with the grounds defined by Art. 284-285 of the Code, as well as the rules for prior notification of the owners of allotments of violations committed by them, are provided for by the LC. If the owner of the site notifies in writing the authorized structure that approved the relevant resolution, on consent, the property object belonging to him can be sold at public auction. If the owner opposes the exemption, the body that made the decision about this has the right to apply to the court.
Tax law
Arbitration law often intersects withNK. The Tax Code provides for the rules, according to which, after making a decision to hold a person liable for the violation, the supervisory authority applies with a claim for recovery of the sanction from it. Until then, the tax inspection must offer the payer or another subject to pay the appropriate amount voluntarily. In the event of a debtor's refusal or a missing deadline for payment of a sanction, the supervisory authority may apply to the court.
FZ No. 948-1 of the RSFSR
In the said normative act (with the adoptedlater additions and changes), regulating the scope of competition and limiting monopolistic activities, in Art. 20 it is determined that if the applicant has not received a response from the FAS on his application within two months or does not agree with the decision, he can apply to the court. The calculation of this period is carried out from the date of receipt by the authorized body of the relevant notification from the entity.
Patent Legislation
According to Art. 21, p.9 of Federal Law No. 3517-1 (with the amendments adopted and amendments), if the decision on granting a patent for an invention is refused or rejected, and the application is withdrawn, the interested person may submit an objection to the authorized Chamber under the executive federal body within six months from day of receipt of the relevant act. The decision of the specified instance must be approved by the head of the structure that carries out activities in the field of intellectual property. This decision comes into effect from the moment of adoption and can be challenged in court.
Tariff regulation
In Federal Law No. 14 it was stated that ifdisagreements concerning the establishment of rates for thermal and electric energy, suppliers and consumers, the energy commissions of the regions have the right to apply to the Federal authority for their resolution. Disputes related to the state regulation of tariffs, including those that are not eliminated in the said body, are subject to judicial review. Meanwhile, Federal Law No. 38, these provisions were excluded. Issues that arise when applying Federal Law No. 14 were submitted to the Government and the executive federal body for control over natural monopolies. According to experts, this fact does not indicate the mandatory pre-trial regulation of disputes under Federal Law No. 14.
Customs Code
This normative act previously contained chap.57, which provided for "initial appeal", which, in fact, acted as a pre-trial settlement. However, according to Art. 46 (clause 1) of the Code, filing a complaint about the omission / operation of the customs structure or its employee does not exclude the right of subsequent or simultaneous submission of an application of similar content to the first instance.
Contractual relationship
They can also provide for a claimorder. In this case, the text of the contract should indicate which issues are to be resolved in this way. As a rule, participants in the transaction do not draw up a separate document providing for a pre-trial agreement between the parties. Usually in the text of the original contract there is only a reservation about this. Meanwhile, all possible cases of violation by the counterparty of the terms of the transaction can not be envisaged. In this regard, often, even if there are appropriate reservations in the contract, participants in legal relations require legal assistance.
Nuances
The key task of debtors in the event ofconflict situations is the conclusion of an agreement on terms that are advantageous for oneself. Situations in life can be very different, respectively, the reasons for which the counterparty violated the contract, can be any. Nevertheless, conscientious participants in legal relations tend to find a compromise. It is worth saying that this is beneficial for the creditor, since the pre-trial agreement will save time, effort and money for the proceedings. To begin with, you need to properly formalize your requirements.
Features of compilation
The claim is formalized, as was said above, in writing. Legislation does not establish specific requirements for the contents of the document. However, it must be present:
- The name of the applicant, the data on the state registration.
- Address of the organization.
- Bank details.
- Grounds for sending a claim. It may be (depending on the nature of the contract) partial or complete loss of cargo, damage to property, shortage of goods, delay in delivery and so on.
- The size of the claim for each claim separately, receipt, invoice, credit card, statement, etc.
- List of documents that are attached in support of the requirements.
The claim is signed by the applicant. If a representative acts on the creditor, his powers must be confirmed by a power of attorney.
Timing
They are envisaged by many normativeActs, including the ones listed above. According to Art. 123 of the Charter of railway transport, a claim to the carrier may be presented within six months, and in respect of penalties and fines - five days. The period in Art. 406 MWC. It coincides with the statute of limitations for the submission of claims to the court. A similar situation is present in Art. 161 (paragraph 4) of the Code on Water (Inland) Transport. In case of violation by the air carrier of the terms of the contract, the claim can be presented within six months. This rule is set art. 126 of the relevant Code. The method for sending the claim should be chosen so that it can later be proved. As a rule, interested persons send it by mail in the form of a registered letter with the registration of the notice of receipt. Another option is handing personally to a receipt. However, this method is not so popular, because the counterparty can refuse to sign and generally accept the claim.
Answer
Virtually all transport codes andstatutes set the obligation to notify the applicant of the decision. If it is not stipulated in the legislation or the law, then the direction of the answer is the right of the addressee. The requirements for its content are determined only in certain normative documents. For example, they are present in the Charter of the railway transport in Art. 124. If the addressee decides to refuse to satisfy the claim, the answer must be justified. It should specify references to the normative documents by which the subject was guided. If a decision is made to satisfy the claim, the response must contain a description of the way in which the claim is fulfilled. In addition, specify the period in which they will be executed.
Consequences of non-compliance with legislative requirements
According to Art. 126 p.7 of the APC, documents must be attached to the claim proving that the claimant complied with the claim procedure, if it is mandatory by the norms or the contract. The consequences of failure to comply with this requirement are set forth in Art. 128 p. 1 of the Code. If it is established during the consideration of the application that it was presented in violation of the rules defined in Art. 125-126 of the agrarian and industrial complex, the authorized body issues a ruling, to which the action is left without motion. Along with this, the court appoints a period during which the identified shortcomings should be corrected. If the interested person has not eliminated the deficiencies, the claim is subject to return. If the arbitration court, after accepting the application for production, reveals that the claim procedure was not complied with by the plaintiff, its claims are left without consideration. This provision is established art. 148 agroindustrial complex.
Who has the right to make a claim?
At enterprises, as a rule,the legal department, whose tasks include legal support of the company's activities. The duties of employees, among other things, include representation of the interests of the firm in the courts. Accordingly, specialists work with various documents coming from counterparties and state bodies. Meanwhile, the direct preparation of claims may not be part of their responsibilities. This is due to the fact that the dissatisfaction of contractors can relate to various areas of the enterprise. For example, the company received a claim for delay in delivery. Warehouse workers are responsible for the shipment of goods. Accordingly, they can explain why the delivery was delayed or, conversely, indicate the unreasonableness of the claim. The tasks of lawyers at the enterprise include checking compliance of documentation with the requirements of legislation. Thus, employees of other departments of the enterprise who are responsible for a particular activity for which a claim has been made form a response to it (or itself, if the violation is committed by the counterparty). The specialist of the legal department checks the correctness of its compilation, the availability of all requisites, necessary signatures.
conclusions
Conclusion of the agreement between the participantsCivil turnover always assumes the existence of a certain risk. In any case, there is a possibility that, for one reason or another, the counterparty may violate the terms of the transaction. In such situations, it should not always be immediately sued. To begin with, it is necessary to try to resolve the conflict without resorting to judicial protection. In many cases, the partners manage to find a way out of the situation. In cases where contractors do not want to make concessions, nothing else remains, except for a claim. Meanwhile, even after it is accepted for consideration at the first meeting, the parties to the conflict are invited to come to a compromise. The approval of a settlement agreement is another way to resolve the situation.
