Judicial practice, claim procedure in a contract. Pre-trial settlement of disputes in civil proceedings. Is it necessary to file a claim if a claim in a corporate dispute is filed not by a participant in the corporation, but by the corporation itself?

What is a claim dispute resolution procedure?

Controversial issues between opponents in relationships of various kinds can be resolved not only in court, but also in pre-trial proceedings. At the same time, the pre-trial settlement procedure involves drawing up a special document - a claim, therefore this conflict resolution procedure is also called a claims procedure.

Schematically, the process of claim dispute resolution is as follows:

One of the parties (usually the one that believes that its rights have been violated) draws up and sends to the counterparty a written claim document, in which it indicates the terms of the contract, which, in its opinion, were not observed by the counterparty, and offers options for resolving the conflict.
Counterparty:

within the period specified in legislation or a contractual document, responds to the claim, after which the parties come to a consensus on controversial issues;
responds to the claim within the stated time frame, but refuses to settle the dispute out of court;
does not respond to the complaint.

The last two options for the development of the situation involve subsequent contact judicial body to resolve the dispute.

When is a claim for pre-trial settlement required?

In some cases, the preliminary claims procedure is mandatory. Thus, the Civil Procedure Code of the Russian Federation (Articles 135, 222) and the Arbitration Procedure Code of the Russian Federation (Articles 129, 148) make the procedure for accepting for consideration dependent on the procedure for conducting pre-trial procedures statement of claim. Failure to comply with the claim procedure results in the return of the claim or leaving it without consideration.

Mandatory pre-trial contact with the counterparty is provided for for a number of categories of cases by the relevant legislative norms:

In the field of tax offenses and in the field of collection of mandatory payments:

Part 2 Art. 213 of the Arbitration Procedure Code of the Russian Federation - before applying to the arbitration court;
Part 1 Art. 286 CAS RF - before going to a court of general jurisdiction.

Disagreements in the area of contractual relations:

clause 1 art. 445 - if there is an obligation to conclude a contract without fail;
clause 2 art. 452 - when resolving issues regarding changes and termination of the contract;
para. 3 tbsp. 619 of the Civil Code of the Russian Federation - when deciding the issue of early termination agreement.

Conflicts regarding termination of contractual employment relationships and bank account:

clause 4 art. 687 of the Civil Code of the Russian Federation - upon termination of a rental agreement for residential premises;
Part 1 Art. 35 - upon eviction of a citizen who has lost the right to use residential premises;
Part 1 Art. 91 of the Housing Code of the Russian Federation - upon eviction of the tenant and members of his family;
para. 1 item 2 art. 859 of the Civil Code of the Russian Federation - upon termination of a bank account agreement at the initiative of the bank.

Disputes during public procurement:

clause 3 art. 528 - when resolving disagreements regarding a government contract and subsequently submitting them to court for resolution;
clause 4 art. 529 of the Civil Code of the Russian Federation - if there are disagreements regarding supply contracts for state needs.

Disagreements regarding insurance payments under MTPL:

Part 1 Art. 16.1 - if it is necessary to file a claim to collect insurance compensation.

A large group of disputes arising from relations in various types of cargo transportation, in particular:

clause 1 art. 797 of the Civil Code of the Russian Federation - before going to court with a claim against any carriers (this provision is duplicated in legal regulations related to various types transportation, for example part 3 of Art. 124 of the Air Code of the Russian Federation).

There is no single format for a pre-trial claim document defined by law; accordingly, it can be drawn up in free form. However, when creating a letter of claim, it is necessary to take into account everything essential conditions spore.

You should also ensure that the claim contains:

Letter details ( registration number, date, names and addresses of the sender and recipient).
Title of the document.
Main text including:

information about the main agreement on the basis of which the legal relationship was established;
information about the current situation that led to filing a claim against the opponent (for example, the presence of debt, an indication of the procedure for its formation and calculation of debt obligations);
options for resolving the conflict, deadlines for fulfilling obligations;
a reminder that the claim procedure has been complied with and further failure to fulfill the terms of the contract will result in recourse to court.

Sender's signature and seal (if available).

Please note that:

It is not only the law that can establish a mandatory pre-trial procedure for resolving disputes. Such a rule can also be established in a contract.
The claim must either be sent by registered mail with acknowledgment, or transmitted directly with a receipt stamp.

Claim for pre-trial settlement - sample

Each claim is drawn up based on the individual provisions of a specific contract and those conditions that were violated by the counterparty. As an example, we offer a sample claim drawn up by our specialists:

General Director of LLC "Chance"

Podkholzin Yu. A.

Voronezh, st. Matrosova, 7

from Polet LLC

Voronezh, Pobedy Boulevard, 54/2

Don't know your rights?

The judicial procedure for protecting rights in the context of shaken economic relations, a decline in consumer demand due to the insolvency of the majority of participants in civil transactions, and overstocking of warehouses may not always be effective and efficient, since it can completely undermine previously established partnerships and business reputation disputing parties.

In these conditions, the pre-trial procedure for resolving disputes is of particular relevance, giving the parties an additional opportunity, without violating existing relationships, to find compromise solutions through mutual concessions conflict situations.

The pre-trial dispute resolution procedure is a procedure for negotiating certain contractual relations or other activities aimed at resolving disputes between the participants civil legal relations.

In certain situations arising from contractual legal relations, the pre-trial procedure for resolving a dispute is a mandatory stage of dispute resolution, since it is directly provided for by law (Article 450-453 of the Civil Code of the Russian Federation).

Often, in the course of this or that activity, situations arise for citizens or organizations when they need the help of a specialist in the legal resolution of the conflict that has arisen (mediator). Involving a lawyer in this situation allows you to significantly speed up the process of negotiating and achieving results, and also helps to develop a scheme for further actions in accordance with the requirements of the law.

This method of resolving a dispute is the most optimal for the parties, since it does not involve going to court, government bodies executive power and is not associated with premature and unjustified incurrence of large legal costs for conducting a trial, allows issues to be resolved in a shorter period of time.

Legal and advocacy services for conducting cases in court are quite an expensive service, this is explained by its labor intensity, as well as the complexity of disputes and the length of time involved in the case. Involving a specialist to resolve the conflict peacefully before considering the dispute in court, as practice shows, brings less costs for the client.

As a rule, litigation undermines even long-term business relationships between the parties, since the trial of a case in court involves many unpleasant events. After such procedures, it is rarely possible to restore business cooperation with a counterparty. Most likely, you will have to “break up” with him before the decision is made.

And if the relationship is not terminated, then its development will certainly be in a state of crisis, which will adversely affect the financial economic activity disputing organizations. Pre-trial settlement of the dispute, on the contrary, will strengthen the business relationship between the parties and direct them towards productive and mutually beneficial cooperation.

If, during pre-trial negotiations, the parties did not reach a resolution of the dispute, and one of the parties went to court, lawyers, acting as mediators, will help resolve the dispute at the stage of preliminary consideration of the case in court. The dispute can be resolved by concluding a settlement agreement on mutually beneficial terms, if necessary, drawing it up in the shortest possible time. It is better for individuals and legal entities to resort to the procedure pre-trial procedure resolve the dispute by involving qualified lawyers.

Lawyers have experience in negotiating the settlement of disputes pre-trial, will form a clear and specific position on the case, will help you choose the best options for resolving the situation, minimizing the costs of possible future trial. Lawyers will help minimize the costs of possible collection of penalties, incurred losses, lost profits, penalties, and help preserve business relationships and reputation.

The pre-trial procedure for resolving disputes can be implemented in the following forms:

Oral and written legal advice;

Analysis of available documentation (contracts, acts, invoices, business correspondence etc.);

Preparation of claims, responses to claims, statements, protests addressed to the counterparty, state and municipal authorities;

Conducting and supporting negotiations with counterparties, partners, representatives of state and municipal authorities;

Developing an optimal solution for both sides of the dispute;

Preparation of documentation necessary to consolidate the agreement reached ( additional agreements, contracts, protocols, settlement agreements, etc.).

The pre-trial procedure for resolving a dispute is provided for by the current legislation of the Russian Federation and is not mandatory nature. However, direct compliance with the claim procedure may be provided for by law or by agreement of the parties, non-compliance with which may affect the consideration of the case, since according to Art. 452 of the Civil Code of the Russian Federation, a requirement to change or terminate a contract can be submitted by a party to the court only after receiving a refusal from the other party to the proposal to change or terminate the contract or failure to receive a response within the period specified in the proposal or established by law or the contract, and in its absence - in thirty days period.

If the negotiations are unsuccessful, the parties to the legal relationship have the right to go to court, in which, by virtue of Art. 132 of the Civil Procedure Code of the Russian Federation and Article 152 of the Arbitration Procedure Code of the Russian Federation, the statement of claim submitted to the court must contain information about the plaintiff’s compliance with the claim or other pre-trial procedure, if it is provided for by federal law or an agreement.

Thus, if you go to court due to failure to resolve a dispute pre-trial, evidence of pre-trial settlement of disputes must be attached to the claim, otherwise the submitted application may not be accepted for proceedings.

The clear and skillful conclusion of trade agreements is the main condition for their proper execution. It is at the stage of drawing up contracts that the prerequisites are laid successful work firms, increasing profits and preventing losses from non-fulfillment of obligations. Therefore, work on concluding contracts requires constant attention from managers and legal services of organizations.

In the course of commercial activities, any business entity, one way or another, encounters controversial situations with counterparties. They can be resolved through the court, or you can simply reach an agreement without involving representatives of the judiciary. However, such dispute resolution must occur according to certain rules, which are provided for Russian legislation and business practices.

The pre-trial settlement procedure is also used to resolve conflict situations between entrepreneurs and authorities state power, for example tax. And also between individuals and legal entities, for example in disputes over consumer protection.

The term “pre-trial procedure for dispute resolution” is usually understood as stipulating in a contract or law the conditions for sending a claim or other written notification from one disputing party to the other, establishing deadlines for a response and other conditions that allow the conflict to be resolved without going to court.

As already noted, this form of conflict resolution is possible in various economic and public law relations, therefore the nuances of the pre-trial settlement procedure depend on the nature of the dispute. The pre-trial (claims) procedure for resolving economic disputes represents mutual actions of the parties aimed at resolving disagreements without the intervention of judicial authorities.

An economic entity (legal entity or citizen-entrepreneur), who believes that his rights have been violated by improper actions of another party to economic activity, appeals to the violator of obligations with a requirement to eliminate the violation within a specified period. The recipient of the complaint considers it and, if he finds the arguments justified, takes the necessary measures to eliminate the violations committed.

The significance of the possibility of a claim procedure for resolving disputes is that such a procedure leads to a faster and mutually beneficial resolution of disagreements and disputes that have arisen.

In accordance with Art. 10 of the Federal Law “On the implementation of the Arbitration Procedural Code Russian Federation» The provision on the claim procedure for resolving disputes, approved by Resolution of the Supreme Council of the Russian Federation of June 24, 1992 No. 3116-1, was declared invalid as of July 1, 1995. According to Part 3 of Art. 4 of the Arbitration Procedure Code of the Russian Federation, if federal law establishes a pre-trial (claims) settlement procedure for a certain category of disputes or it is provided for in an agreement, the dispute can be referred to the arbitration court only after compliance with this procedure.

The right to appeal to the arbitration court without observing the pre-trial (claims) procedure for resolving disputes has the prosecutor, state bodies, and local government bodies.

When drawing up various contracts, business entities can provide for a claim procedure as the first step in resolving disputes regarding the fulfillment of obligations. In this case, the pre-trial procedure for resolving a dispute under this agreement will be mandatory for the parties to the agreement.

In relation to the issue under consideration about the pre-trial procedure for resolving a dispute, it is necessary to say about one more case when compliance with such a procedure is necessary. We are talking about changing and terminating the contract.

By general rule, provided for in paragraph 1 of Art. 450 of the Civil Code of the Russian Federation, changes and termination of the contract are possible by agreement of the parties, unless otherwise provided by the Civil Code of the Russian Federation, other laws or the contract.

Exception from general rule There are two cases when it is permissible to amend and terminate the contract at the request of one of the parties by a court decision:

If there is a material breach of the contract by the other party;

In other cases provided for by the Civil Code of the Russian Federation, other laws or an agreement.

A mandatory condition for changing or terminating a contract by a court decision is compliance with a special pre-trial procedure for resolving a dispute directly between the parties to the contract. The essence of the pre-trial settlement procedure is set out in paragraph 2 of Art. 452 of the Civil Code of the Russian Federation. According to this rule, the interested party, before going to court, must send the other party a proposal to change or terminate the contract.

A claim can be filed in court only after receiving a refusal from the other party to the proposal to change or terminate the contract or failure to receive a response within 30 days, unless a different period is provided by law, the contract or was not contained in the proposal to change or terminate the contract.

The procedure for claim settlement of disputes is as follows: the alleged creditor (future plaintiff) sends (presents) to the alleged debtor (future defendant) a demand (most often formalized in the form of a claim) for the fulfillment of the substantive legal obligation that lies with him and waits for a response within the period established by law or by agreement of the parties. The alleged debtor has the right (and sometimes the obligation) to respond to the claim within a specified period. Upon expiration of the specified period and failure to fulfill the obligation by the debtor, the specified procedure is considered to be complied with.

Claim (from Late Latin praetensio - claim, demand) is a demand of a creditor to a debtor for payment of a debt, compensation for losses, payment of a fine, elimination of deficiencies in products delivered, items sold, work performed.

The claim is submitted in writing and signed by the head or deputy head of the organization, a citizen-entrepreneur.

When drawing up a pre-trial claim, you can be guided by established business customs or the Regulations on the claim procedure for resolving disputes, approved by Resolution of the RF Armed Forces of June 24, 1992 No. 3116-1. This provision is not currently in effect, but if a reference to it is made in the agreement, it will become binding on the parties.

The claim must include the following information:

The name of the applicant of the claim, and for legal entities - data on the certificate of state registration as a legal entity;

Location of the legal entity (zip code, republic, territory, region, city, locality, street, house number, building number, apartment number), and for individuals- details of an identity document (passport or a document replacing it) and the address to which the response to the claim should be sent;

Bank details;

Grounds for filing a claim (total or partial loss of cargo, shortage, damage (spoilage), delay in delivery and other grounds);

The amount of the claim for each individual claim, for each invoice, cargo acceptance receipt, registration card for fulfilling an application for the transportation of goods by rail, wagon supply and removal records, savings card and other documents;

List of documents attached to the claim."

Claims are signed by the consignor, consignee, owner of the non-public railway track, and insurer.

If a claim is made on behalf of the consignor, consignee, or owner of a non-public railway track by an authorized person, the right to make this claim must be confirmed by a power of attorney issued in accordance with the legislation of the Russian Federation.

Thus, all of the above can be combined into a sample of filling out a claim: the claim indicates - the applicant’s requirements; the amount of the claim and its justified calculation, if the claim is subject to monetary assessment; the circumstances on which the claims are based and the evidence supporting them, with reference to the relevant legislation; a list of documents and other evidence attached to the claim; other information necessary to resolve the dispute.

The claim shall be accompanied by original documents confirming the claims made by the applicant, or appropriate certified copies or extracts from them, if these documents are not available from the other party.

If a mandatory pre-trial procedure is provided for not in the law, but in an agreement, then this agreement must clearly indicate the dispute on which issue requires such a procedure.

The claim is sent by registered or certified mail, by telegraph, teletype, as well as using other means of communication that ensure its dispatch is recorded, or is handed over against receipt.

The procedure for complying with pre-trial dispute resolution includes several procedural stages: drawing up a claim, presenting it, waiting for a response. Moreover, the timing of these actions is also important.

Unfortunately, from our point of view, not all issues related to compliance with this procedure are properly reflected in the current legislation.

The fact that the claim must be submitted in writing seems obvious, based on the analysis of the norms of the Arbitration Procedure Code of the Russian Federation and the specified Laws, but, for example, in Art. 405 of the Merchant Shipping Code of the Russian Federation is directly established.

The procedure for submitting a claim to the defendant must be chosen in such a way that would allow, when filing a claim, to prove the fact of submission. This may be by mail with notification of receipt, delivery against receipt, etc.

There are currently no uniform rules for filing claims. IN regulations, establishing the mandatory nature of the claim procedure, contain their own rules for filing claims. When establishing a mandatory pre-trial procedure for resolving a dispute in an agreement, the rules for filing a claim and deadlines are also determined by this agreement.

Let's look at some of the rules.

Charter of railway transport of the Russian Federation dated January 10, 2003 No. 18-FZ in art. 120 establishes that before a claim is brought against the carrier related to the transportation of goods, a claim is filed against the carrier. From the content of this article it follows that claims must be made in connection with the transportation of not only cargo, but also cargo luggage. claim

Merchant Shipping Code of the Russian Federation dated April 30, 1999 No. 81-FZ in Art. 403 establishes that before filing a claim against the carrier in connection with the carriage of goods in cabotage, it is mandatory to present a claim to the carrier;

Internal Code water transport of the Russian Federation dated March 7, 2001 No. 24-FZ greatly expands the scope of the mandatory pre-trial procedure: “Before filing a claim in connection with the transportation of a passenger, baggage, cargo to a carrier or in connection with towing a towed object to a towing vehicle, it is mandatory to file a claim against the carrier or tow truck."

Air Code of the Russian Federation dated March 19, 1997 No. 60-FZ in paragraph 3 of Art. 124 establishes that before a claim is brought against the carrier in the event of a violation of the contract for the carriage of goods by air or the contract for the carriage of mail by air, a claim is presented to the carrier;

The Federal Law “On Communications” dated July 7, 2003 No. 126-FZ (Article 55) and the Federal Law “On Postal Communications” dated July 17, 1999 No. 176-FZ (Article 37) establish the obligation for the communication user to submit claims to the telecom operator in case of non-fulfillment or improper fulfillment of obligations when providing communication services or performing work in the field of communication.

In accordance with Art. 797 of the Civil Code of the Russian Federation, before filing a claim against the carrier arising from the transportation of goods, it is mandatory to present a claim to him in the manner prescribed by the relevant transport charter or code. At the same time Art. 797 of the Civil Code of the Russian Federation does not affect the procedure for filing claims for baggage and passenger transportation. The provisions of transport charters and codes, as well as the transportation rules that supplement them, apply on these issues.

In paragraph 2 of Art. 797 of the Civil Code of the Russian Federation establishes a 30-day period for consideration by the carrier of claims arising from the transportation of goods, regardless of the content (unsafe delivery, settlements, fines) and type of transportation (local, direct, mixed).

Claims arising from unsafe (shortage, damage) transportation of goods by road are presented to to a motor transport company or the organization that issued the cargo, and in case of complete loss of the cargo - to the motor transport enterprise or organization that accepted the cargo for transportation.

Claims arising from the carriage of passengers or baggage may be brought against the carrier of origin or destination at the discretion of the claimant.

The calculation of the deadlines for filing claims against the railway is provided for in Art. 123 of the Charter of Railway Transport of the Russian Federation, to the shipping company - Art. 163 of the Code of Inland Water Transport of the Russian Federation.

As for the application of the statute of limitations in relation to the carrier to the client, the mandatory pre-trial procedure for resolving disputes does not apply to them.

For claims related to the unsafety (spoilage, damage, shortage) of baggage during transportation by rail and road transport, the deadline for filing a claim is calculated from the day the baggage is issued:

a) after 10 days after the end of the baggage delivery period - for claims for compensation for loss of baggage;

b) from the day of delivery of cargo or luggage - for claims of delay in delivery of cargo or luggage.

Claims against the shipping company related to the complete loss of baggage must be made twenty days after the end of the baggage delivery period. For claims about excess carriage charges and a fine for late delivery of baggage, the limitation period for claims is calculated from the day the baggage is issued.

In accordance with Art. 55 of the Federal Law “On Communications”, in the event of non-fulfillment or improper fulfillment of obligations when providing communication services or performing work in the field of communication, the communication user has the right to present claims to the telecom operator providing services or performing work, including a claim for damages.

For claims related to non-provision, untimely or poor-quality provision of communication services or non-performance or improper performance of work in the field of electrical communications (except for claims for telegraph messages), as well as non-delivery, late delivery, damage or loss postal items, the statute of limitations is six months; for claims related to non-delivery, late delivery or distortion of telegraphic items - one month.

Claims related to the non-provision, untimely or poor-quality provision of communication services, or failure to perform work in the field of electrical communications, as well as for all types of non-resident mail, must be considered and written responses sent within two months; by local mail - within five days; by telegraph - within a month.

In relation to legal entities, claims related to the subscription and delivery of newspapers, magazines and other non-periodical printed publications, are presented and considered within one year.

If a claim is rejected or a response is not received within the time period established for its consideration, the applicant has the right to file a claim in court or arbitration court.

If it is still possible to file a claim in accordance with the established procedure, then the arbitration court returns the statement of claim in accordance with Art. 129 Arbitration Procedure Code of the Russian Federation.

The consequence of violating the established procedure for resolving the issue of amending or terminating a contract is that the arbitration court, having received a party’s statement of claim without the necessary evidence of contacting the other party with a corresponding proposal in a pre-trial manner, will also be obliged on the basis of Art. 129 of the Arbitration Procedure Code of the Russian Federation to return the statement of claim.

If the arbitration court returns the statement of claim, the plaintiff, after eliminating the shortcomings (that is, after filing a claim), may again appeal to the arbitration court with a claim.

Many organizations still do not attach much importance to the claims (pre-trial) procedure for resolving disputes. This becomes possible due to the fact that managers either do not understand the importance of pre-trial correspondence or consider it unnecessary. Meanwhile, in case of non-compliance with the claim procedure, if provided for by law, the court leaves the statement of claim without consideration.

The Russian Federation Law “On the Protection of Consumer Rights” provides for the possibility of protecting consumer rights out of court.

Extrajudicial procedure is expressed in the fact that the consumer can present demands for the protection of a violated right directly to the seller (manufacturer, performer), without filing a claim in court.

Thus, the consumer has the right to choose.

He may, at his discretion:

1) or present a demand for protection of the violated right to the seller (manufacturer, performer);

2) or file a claim in court without first presenting demands to the seller (manufacturer, performer).

If a consumer makes a demand to the seller, this does not deprive him of the right to subsequently file a claim in court if the seller (manufacturer, performer) refuses to voluntarily satisfy his demand in whole or in part. But for the seller, the presentation of a claim by the consumer is fraught with negative consequences.

According to paragraph 6 of Art. 13 of the Law of the Russian Federation “On the Protection of Consumer Rights”, when satisfying the consumer’s demands, the court may make a decision to recover from the seller (manufacturer, performer) who violated his rights, in federal budget a fine (in the amount of the cost of the claim) for failure to comply with the voluntary procedure for satisfying consumer requirements. This fine is collected into the state budget, i.e. voluntary satisfaction of the consumer’s legitimate claims is the seller’s responsibility.

True, it is impossible to present a claim to the seller demanding compensation for moral damage. After all, according to Art. 15 of the Law of the Russian Federation “On the Protection of Consumer Rights”, the amount of compensation for moral damage is determined by the court. Thus, the claim for compensation for moral damage caused to the consumer as a result of violation of his rights by the seller (manufacturer, performer) can only be satisfied in court.

Failure to comply with the mandatory pre-trial dispute resolution procedure prevents the consideration of the claim. This provision is also enshrined in the Resolution of the Plenum Supreme Court RF “On the practice of courts considering cases on the protection of consumer rights”1). It must be borne in mind that the expiration of the period established by law for a citizen to file a claim is not a basis for refusal of judicial protection, since this contradicts Art. 46 of the Constitution of the Russian Federation.

Thus, it should be borne in mind that in accordance with the rules for the provision of certain types of services and the sale of goods, the judge will have to refuse to accept the statement of claim if the consumer has not complied with the preliminary pre-trial procedure for resolving the dispute and this opportunity has not been lost.

A claim is a material expression of all your requirements to the seller, manufacturer or manufacturer. The claim is presented in free form, but its content must be absolutely clear. The procedure and stages for submitting claims to the seller of goods or service providers are specified in Appendix A.

So, the claim must be made in writing, signed personally or by a consumer representative and include:

1) full name of the trading enterprise and its legal address;

2) last name, first name, patronymic (in full) and home address of the consumer;

3) conditions, place and time of purchase of the goods;

4) what is the violation of your rights as a consumer;

5) brief description product defects;

6) consumer requirements (eliminate the malfunction, terminate the sales contract, etc.);

7) a list of documents and other evidence attached to the claim;

8) your opinion about the seller’s fault, what exactly it is;

9) the claim for compensation for moral damage and the amount of this compensation;

10) other information necessary to resolve the dispute.

The claim must be accompanied by documents (copies thereof) substantiating the claims (for example, a document confirming the purchase of goods from a specific seller, a coupon from a warranty workshop, etc.). If the claim is accompanied by any documents confirming the stated requirements, they can be either originals or certified copies. You can not give the document in full, but provide an extract from it. One copy of the claim is handed over to the seller, and on the second copy the seller makes a note indicating receipt of the consumer’s statement.

You can submit a claim to the seller in any way: hand it in person, send it by registered or valuable mail, by telegraph, teletype, as well as using other means of communication that record the shipment (the fact of sending the claim). In any case, there must be confirmation that the claim was sent to the seller: a receipt for sending registered (or with acknowledgment of receipt) mail or a mark (with the incoming number and date, seal (stamp), signature official) the addressee organization about receipt of the claim materials (on another copy of the claim).

The organization or individual entrepreneur that received the claim is obliged to inform the applicant about the results of the consideration. However, if the seller is not obligated by law or contract to give an answer to the buyer, then he may not give it.

If the response to the claim is positive, it indicates the recognized amount, the period and method of satisfying the claim, if it is not subject to monetary assessment.

In case of complete or partial refusal to satisfy the claim, the reasons for the refusal must be provided with reference to legal norms and evidence justifying the refusal. The applicant must be returned the originals that were attached to it, and also sent documents justifying the refusal, if the applicant does not have them. If the seller's response is not satisfactory, you have the right to go to court.

The claim procedure for resolving disputes is usually a voluntary matter of the parties. As stated above, only in exceptional cases established by law, writing a pre-trial claim is prerequisite going to court. In all other cases, the parties can send the claim to court without any warning. The timeliness of taking measures of a claim nature is an important element of financial and economic activity for any organization.

Equally important is the preparation of a reasoned response, since it will either prevent lengthy proceedings in court in advance, or will become a plus in your favor at this stage.

As a result, we can say that it is not recommended to neglect the opportunity to resolve differences amicably, because filing a claim is not only troublesome, but also very expensive. But often a well-drafted pre-trial claim can convince even the most persistent violator to fulfill his obligations. Therefore, a pre-trial claim can save a lot cash.

Various disputes often arise between business entities, which, as a rule, they try to resolve in court. At the same time, in at least half of the cases the dispute can be resolved voluntarily, without bringing the matter to court.

In legal practice, such a procedure is called “claim correspondence.” Its essence lies in the parties sending written, motivated demands, based on the results of their consideration, actions are taken to resolve disagreements. If such measures do not lead to results, the dispute is referred to the court.

Pre-trial dispute resolution procedure

Until 2016, compliance with the claim dispute resolution procedure was required only in two cases:

if required by law;
if it was established by the parties to the agreement.

In other cases, it was possible to go to court without prior correspondence.

The situation changed radically in 2016. The amendments made to the law oblige compliance with the pre-trial claims procedure.

Neglect of this rule is fraught with the risk that the claim will either be returned or left without consideration. There are also exceptions, but they relate to specific proceedings, such as bankruptcy, corporate disputes, issues of enforcement of arbitration decisions and some others. These cases do not require compliance with the claims procedure. The adoption of such measures is dictated by the desire to reduce the burden on the courts by reducing the number of cases being considered, as well as to encourage business entities to use alternative methods of resolving disputes.

Now, in order.

Deadlines

As a general rule, the time limit for responding to a claim is 30 calendar days, and it is sent in writing by legal address counterparty. But the legislator also provided an exception to this rule, leaving the parties to independently decide on the timing and procedure for claims work.

Simply put, at the stage of concluding a contract, you can provide for:

a different period for consideration of claims, it may be more or, conversely, less than specified;
a different procedure for submitting claims, for example: by fax, email, etc.

Form

In form, the claim is no different from business letter or statement of claim. It consists of:

introductory part;
descriptive and motivational;
pleading or final.

Introductory part. The filing of a claim begins in the standard way, with the indication of the addressees - from whom and to whom it is sent. Complete information must be provided: names of the parties, addresses, contact numbers, contact person, etc.

Descriptive and motivational. The most important part is the heart of the claim. Here you must clearly and clearly indicate the following information: a reference to the obligations, what the violation was, what consequences it entailed, the amount of debt, etc. The information is presented concisely; you should not “spout water” or limit yourself to one simple phrase “you owe us, pay us.”

You start by pointing out obligations. For example: on such and such a date, a supply agreement (contract, transportation, ......) was concluded between our organizations, according to the terms of which, your organization accepted the obligation to accept and pay for the goods (perform work, carry out transportation, .....), and our organization to deliver goods (accept the result of work, ......). It will be immediately clear what we are talking about.

Also clearly and, as briefly as possible, indicate the violations committed. For example, in violation of the terms of the contract (you can specify specific points), you did not make payment for the delivered goods (work was not completed, .....). It is necessary to indicate all violations committed by the party, even if there are many (most often this situation occurs under contract agreements).

After that, go directly to motivation. Provide links to legal provisions; it is better to use specific excerpts from articles of law. This part of the claim must be treated with special responsibility if it is necessary to contact specialists. The effectiveness of the complaint correspondence will largely depend on the quality of the motivation. After reading this part, the party must realize that by their actions they are actually violating the law, they will have to bear responsibility for this and a voluntary resolution of the dispute will be more profitable. Even if the party does not respond to the claim, you will already have a good preparation for the claim.

The pleading part. Everything is simple here, indicate your requirements. For example: I ask you to make a payment (eliminate violations, pay a penalty, replace a product, ………).

If in your situation the arguments are supported by any documents, then they must be attached to the claim. After the petition part, include the “Appendices” section in the claim and list the attached documents.

Now all that remains is to submit the claim. Unless otherwise established by the agreement, the claim and the documents attached to it are sent to the legal address of the party. At the same time, it is better to send the letter with a description of the attachment. All that remains is to wait for the set deadline.

In conclusion, we note that the claim procedure is a very important procedure. Most problematic situations can really be resolved peacefully, and for this a simple contact with the counterparty is sufficient. Thanks to pre-trial dispute resolution, it is possible to significantly reduce the time required to resolve the problem, solve it in an alternative way that will satisfy the interests of both parties, and save on legal costs(duties, legal services, etc.), and just save your own nerves.

Alexander Pertulesov

LLC "YuriKom"

juri-kom.ru

I studied the judicial practice after the changes and explained in the article when it is necessary and when it is not necessary to file a claim.

1. Should I file a claim again if the subject or basis of the claim has changed (Article 49 of the Arbitration Procedure Code of the Russian Federation)?

If the plaintiff changes the subject or basis of the claim, a situation arises of artificial non-compliance with the mandatory claim procedure: the claim was sent with one requirement, and the claim (in the case of a change in the subject) is considered formally with another requirement.

The Supreme Arbitration Court of the Russian Federation in paragraph 2 of letter No. S-13/OP-58 dated February 19, 1993 “On some issues arising in the activities of the arbitration court” explained that the Arbitration Procedure Code of the Russian Federation does not provide for mandatory compliance with the claim procedure if the subject or basis of the claim changes or increases amount of claims. Despite the liquidation of the Supreme Arbitration Court of the Russian Federation and the unclear status of this letter, it is still sometimes mentioned by arbitration courts (see, for example, the decision of the Seventeenth Arbitration Court of Appeal dated June 15, 2017 in case No. 17AP-6663/2017), although the legal force of this clarification more than doubtful.

Therefore, arbitration courts, having accepted the plaintiff’s application to change the subject of the claim, as a rule, leave the statement of claim without consideration on the basis of non-compliance with Part 5 of Art. 4 Arbitration Procedure Code of the Russian Federation.

A different approach was developed by the courts when the cause of action changes. Thus, in one of the cases, the statement of claim was returned by the arbitration court on the grounds of non-compliance with the mandatory claim procedure, since “a claim was included in the case materials with reference to Article 717 Civil Code RF, while the basis for the claim is Article 715 of the Civil Code of the Russian Federation.”

However Court of Appeal, canceling the ruling of the court of first instance and sending the issue for a new consideration, proceeded from the proof of the plaintiff’s compliance with the pre-trial procedure for resolving the dispute. In the claim, the plaintiff formulated specific demands on the defendant: he asked him to transfer a specific amount, indicated specific circumstances that were the basis for the transfer of funds. The amount of unjust enrichment and penalties stated in the claim coincides with that indicated in the claim, and the circumstances of its occurrence also coincide. This position was supported by the Court of Cassation (decision Arbitration Court Moscow District dated February 26, 2018 No. F05-1132/18 in case No. A40-145735/2017).

In another case, the arbitration court of the first instance left the claim without consideration, since the claim contained a demand for payment under the contract, and the claim was filed for the recovery of unjust enrichment (in the same amount). The ruling to return the statement of claim was overturned by the appellate court. Court of Cassation, agreeing with the position of the appeal, noted: “The fact that in the claim the plaintiff asked to pay the cost of additional work performed in the amount of 5,263,542.22 rubles, and in the statement of claim he asked to recover unjust enrichment in the amount of 5,263,542.22 rubles, cannot serve as a basis for declaring the claim dispute resolution procedure not followed. In addition, as rightfully noted by the court of appeal, the text of the claim reveals the subject matter, the basis of the claim, as well as the amount of the stated claims, in connection with which it rightfully came to the conclusion that the claim sent to the defendant preceded the filing of a claim on the identical subject and basis "(resolution of the Moscow District Arbitration Court dated March 9, 2017 in case No. A40-175380/16).

2. Is it necessary to submit a separate claim to recover a penalty (penalty) or interest under Art. 395 of the Civil Code of the Russian Federation?

There is no need to file a separate claim for penalties or interest. As a general rule, in such a situation one should be guided by the explanations of the Plenum of the Supreme Court of the Russian Federation: if the creditor has complied with the claim procedure in relation to the amount of the principal debt, the claim procedure in relation to interest, which is collected on the basis of Article 395 of the Civil Code of the Russian Federation (paragraph 2, paragraph 43), is also considered to be observed. Resolution of the Plenum of the Supreme Court dated March 24, 2016 No. 7 “On the application by courts of certain provisions of the Civil Code of the Russian Federation on liability for violation of obligations”). This approach is followed by most courts.

However, the Ninth Arbitration Court of Appeal in one of the cases interpreted this clarification restrictively, concluding that it “applies to the case of simultaneous presentation of claims for the collection of the amount of debt and the amount of interest.” The court stated: “A claim submitted in the framework of another court case considered on the merits cannot extend its effect to all possible claims defendant, which may be declared in the future.” Accordingly, when filing an application for the recovery of interest only on the basis of Article 395 of the Civil Code of the Russian Federation, the plaintiff must take separate measures to comply with the claim procedure (the decision of the Ninth Arbitration Court of Appeal dated March 13, 2018 in case No. 09AP-66045/2017, has not yet been filed in cassation appealed).

The same Ninth Arbitration Court of Appeal took the exact opposite position in a similar situation, when the principal debt (in compliance with the claim procedure) was collected in another case, and in the case under consideration only interest was collected under Art. 395 of the Civil Code of the Russian Federation. The court stated: “Since a claim was filed for the recovery of interest exclusively on the basis of Article 395 of the Civil Code of the Russian Federation, in connection with the delay in the fulfillment of a monetary obligation in respect of which there is a legal obligation judgment, then the court of first instance had no basis for concluding that the plaintiff did not comply with the claim procedure and return the statement of claim” (ruling of the Ninth Arbitration Court of Appeal dated March 6, 2018 in case No. A40-23151/18, has not yet been appealed in cassation; a similar position – the decision of the Ninth Arbitration Court of Appeal dated February 14, 2018 in case No. A40-239096/17, was not appealed in cassation).

In another similar case, the appellate court specifically noted: “The stated additional obligation to collect interest for the use of other people’s funds is related to the main debt, follows its fate, all circumstances, including the existence of a debt from the defendant to the plaintiff, were clarified and established by the court in the case No. A40-165944/16, in connection with which there is not a single claim for the recovery of interest exclusively for the use of other people’s funds, but there is a subsequent dispute related to the main one regarding the collection of debt” (ruling of the Ninth Arbitration Court of Appeal dated February 8, 2018 in case No. 09AP-884/2018, not appealed in cassation).

3. Is it necessary to submit a repeated claim if the defendant is replaced or a second defendant is involved (in accordance with Article 47 of the Arbitration Procedure Code of the Russian Federation)?

When replacing a defendant or involving a co-defendant, a situation arises of artificial non-compliance with the mandatory claim procedure: the claim was sent to one defendant, and the claims were addressed to another.

In such cases, Moscow courts most often leave the statement of claim without consideration. The position of the Arbitration Court of the Ural District in relation to the involvement of a co-defendant or the replacement of an inappropriate defendant is much softer. In the Recommendations of the working group to discuss issues arising in the practice of applying the Arbitration Procedure Code of the Russian Federation, dated November 25, 2016 No. 5/2016 (clause 3), the court indicated: “The plaintiff’s failure to forward a claim or other document for the purpose of settling a dispute does not entail the consequences provided for in clause 2, part 1, art. 148 of the Arbitration Procedure Code of the Russian Federation, in the form of leaving the statement of claim without consideration.”

An interesting position in the situation of replacing the defendant was formulated by the Ninth Arbitration Court of Appeal when considering case No. A40-118104/16. The Moscow Arbitration Court, having replaced the inappropriate defendant at the plaintiff's request, left the claim without consideration. Disagreeing with this approach, the appeal court indicated: “The replacement of the improper defendant with the proper one was carried out by the court at the request of the plaintiff in accordance with Art. 47 of the Arbitration Procedure Code of the Russian Federation during the consideration of the case, in connection with which, legal grounds for the court to apply at this stage of the process the provisions of Part 5 of Art. 4 of the Arbitration Procedure Code of the Russian Federation regulating the procedure for pre-trial dispute settlement. Moreover, leaving the claim without consideration on the grounds of non-compliance with the pre-trial procedure at the stage of replacement by the court of an inappropriate defendant with an appropriate one in accordance with Art. 47 of the Arbitration Procedure Code of the Russian Federation will deprive the legal meaning of performing such a procedural action, provided for by the Arbitration Procedure Code of the Russian Federation, as replacing an improper defendant with an appropriate one” (the decision of the Ninth Arbitration Court of Appeal dated September 29, 2017 in case No. 09AP-44060/2017 was not appealed in cassation).

4. How does the new version of Part 5 of Art. 4 of the Arbitration Procedure Code of the Russian Federation, if the claim was filed during the period of validity of the “old” edition, when the claim procedure was mandatory, and the issue of leaving the claim without consideration is resolved by the arbitration court after July 12, 2017, when filing a claim is no longer mandatory?

In one of the cases, a claim to invalidate a contract was filed in April 2017, when compliance with the pre-trial procedure for resolving a dispute regarding such a claim was mandatory. On July 19, after the new version of Part 5 of Art. came into force. 4 of the Arbitration Procedure Code of the Russian Federation, the defendants stated that the plaintiff did not comply with the claim procedure. The arbitration court of first instance agreed with them and left the claim without consideration.

In canceling the ruling of the Arbitration Court of the Moscow Region, the appellate court proceeded from the fact that at the time this ruling was issued, the requirement for mandatory compliance with the claim procedure for claims to invalidate a contract was no longer established by federal legislation.

The Arbitration Court of the Moscow District agreed with the position of the appellate court, adding that in this particular case, it became impossible to correct the circumstances that served as the basis for leaving the claim without consideration, since mandatory compliance with the pre-trial procedure for resolving a dispute on declaring a transaction invalid and applying the consequences of its invalidity is no longer required (resolution of the Arbitration Court of the Moscow District dated January 29, 2018 No. F05-20728/17 in case No. A41-30231/2017).

However, in another case, arbitration courts in a similar situation took the opposite position. The plaintiff filed a lawsuit in June 2017 to declare the transactions invalid and to apply the consequences of their invalidity. That is, the claim was filed during the period of the “old” edition, when the mandatory claim procedure was mandatory, and the issue was considered on July 13, after the mandatory claim procedure for these requirements was cancelled. By the ruling of the Moscow Arbitration Court dated July 13, 2017, left unchanged by the ruling of the Ninth Arbitration Court of Appeal dated September 25, 2017, the statement of claim was returned to the applicant. In this case, the cassation court agreed with the lower courts (resolution of the Arbitration Court of the Moscow District dated December 8, 2017 No. F05-19255/17 in case No. A40-124347/2017).

5. Is the claim procedure mandatory for the recovery of losses not arising from the contract?

There is no need to file a claim if the claim for damages did not arise in connection with contractual relations or transactions and not as a result of unjust enrichment. Most courts think so. Most often, this position can be found in disputes between companies and government agencies.

Example: the company filed a claim with the arbitration court for recovery from the Main Directorate for State Protection of Facilities cultural heritage expenses for conducting historical and cultural examination land plot at the gas pipeline construction site. The courts of first and appellate instances returned the statement of claim due to the plaintiff’s failure to comply with the pre-trial procedure for resolving the dispute.

Canceling judicial acts, the court of cassation indicated that the company filed a claim for damages, which was based on the provisions of civil law, but was not related to contractual relations and did not arise as a result of unjust enrichment. In such a situation, federal law does not provide for the obligatory observance of the pre-trial procedure for resolving the dispute (resolution of the Arbitration Court of the North-Western District of December 6, 2017 No. F07-14409/17 in case No. A66-12867/2017).

A similar approach was applied when considering the claim of a consumer society for the recovery of funds from the Ministry of Finance of the Republic of Crimea to compensate for the cost of property that was transferred to the ownership of the region. That is, we were talking about compensation for losses that do not arise from an agreement, transaction or unjust enrichment. The Arbitration Court of the Central District came to the conclusion that there is no law that would establish a mandatory pre-trial dispute resolution procedure for such claims (resolution of the Arbitration Court of the Central District dated January 16, 2018 No. F10-6160/17 in case No. A83-13684/2017) .

6. Is it necessary to file a claim if a claim in a corporate dispute is filed not by a participant in the corporation, but by the corporation itself?

LLC went to court to challenge a major transaction made without consent general meeting participants. Essentially, this dispute is of a corporate nature, but formally, in accordance with paragraph 3 of Part 1 of Art. 225.1 of the Arbitration Procedure Code of the Russian Federation, corporate disputes include disputes regarding claims of founders, participants, members of a legal entity regarding the invalidation of transactions made legal entity, and (or) on the application of the consequences of the invalidity of such transactions. It was the formal approach that caused the return of the statement of claim.

The appeal overturned the ruling of the trial court and remanded the case for a new trial. The Court of Cassation, in turn, overturned appeal ruling(resolution of the Arbitration Court of the Moscow District dated July 20, 2017 No. F05-10110/17 in case No. A40-35170/2017).

Only the Supreme Court of the Russian Federation put an end to this case: by the ruling of the Judicial Collegium for Economic Disputes of the Supreme Court of the Russian Federation dated April 2, 2018, in case No. 305-ES17-17083, the cassation ruling was canceled, and the ruling of the appellate court was upheld. Thus, the corporate nature of the dispute does not depend on whether the claim is brought by a member of the corporation or by the corporation itself. In any such case, filing a claim is not required.

7. Is a claim procedure mandatory when collecting paid insurance compensation by way of recourse?

Recovery from the defendant by way of recourse of the insurance compensation paid by the plaintiff is a dispute arising from civil legal relations. Such requirements are not included in the list of cases for which an exception has been established for compliance with the mandatory pre-trial procedure. Therefore, in one of the cases, the cassation court rejected the plaintiff’s argument that it was not necessary for him to comply with the pre-trial procedure for resolving the dispute (resolution of the Arbitration Court of the North-Western District of December 25, 2017 No. F07-15187/17 in case No. A56-57700/2017).

The Ninth Arbitration Court of Appeal takes the opposite position, canceling the rulings to leave such claims without consideration. Example: insurance company(plaintiff) paid the policyholder money based on the contract voluntary insurance, that is, outside the framework of the law on compulsory motor liability insurance, which establishes a mandatory claim procedure for resolving disputes. Based on this, the appellate court came to the conclusion that compliance with the mandatory claim procedure for resolving such a dispute is not required (see the decisions of the Ninth Arbitration Court dated December 28, 2017 in case No. 09AP-66743/2017, dated December 26, 2017 in case No. 09AP -65724/2017, etc.).

8. Will the court leave without consideration a claim filed before the expiration of the 30-day period for responding to the claim or without filing a claim at all?

As a general rule, if a claim is filed without first filing a claim or before the expiration of the deadline for responding to the claim, the courts proceed from the fact that the mandatory claim procedure has not been observed.

For example, in one case, the contract provided for the consideration of claims within 30 days from the date of receipt. The claim was served on May 29, therefore, the claim could have been filed no earlier than June 29, but this happened on June 6, and the court left the claim without consideration (resolution of the Arbitration Court of the West Siberian District dated January 25, 2018 No. F04-5590/17 on case No. A81-1104/2017).

In a similar situation, the Arbitration Court of the Volga District especially noted: “Compliance with the claim procedure for resolving a dispute implies not just a formal submission of demands to the other party, but providing it with the opportunity to resolve the applicant’s appeal within a specified period of time and give a reasoned response to it.” Therefore, if the company sent a claim to the defendant on March 10, and a statement of claim to the court on February 16, then the court considers it justified to leave the statement of claim without consideration (resolution of the Arbitration Court of the Volga District of October 20, 2017 No. F06-24999/17 in case No. A65- 3561/2017).

At the same time, the Supreme Court of the Russian Federation oriented arbitration courts to the need to take into account the goals and real possibility of pre-trial settlement of the dispute: “If it follows from the circumstances of the case that the defendant’s application to leave the claim without consideration due to the plaintiff’s failure to comply with the pre-trial procedure for resolving the dispute is aimed at unreasonably prolonging the dispute that has arisen, the court, on the basis of Part 5 of Article 159 of the Arbitration Procedure Code of the Russian Federation, refuses to satisfy it” (see Review judicial practice Supreme Court of the Russian Federation No. 4 (2015), approved by the Presidium of the Supreme Court of the Russian Federation on December 23, 2015).

The Arbitration Court of the Ural District creatively applied this approach when considering a situation where a counterclaim was not filed at all. The initial claim was for the collection of debt and penalties under the supply contract; the subject of the counterclaim was a claim for recognition of this contract as not concluded. The court came to the following conclusion: “From the essence of the plaintiff’s claims in the original claim and his systemic position on the case, it clearly follows that they do not recognize the arguments asserted by the plaintiff in the counterclaim about the non-conclusion of the contract underlying the claims in the original claim, and there are no intentions to resolve the dispute on this issue. In this case, the position of the defendant in the counterclaim on the issue of the conclusion of the contract has already been expressed and actually excludes the possibility of pre-trial settlement of the dispute.<...>Considering that formal compliance by the person who filed the counterclaim, which was subject to consideration within the framework of the initial claim accepted for proceedings, of the pre-trial procedure for resolving the dispute will not ensure effective judicial protection, the return of the counterclaim due to the failure of the plaintiff in the counterclaim to comply with the claim procedure for resolving the dispute led to an unreasonable delay in the resolution of the dispute that arose and infringement of the rights of one of its parties, the appellate court rightfully canceled the ruling of the arbitration court of the first instance on the return of the counterclaim" (resolution of the Arbitration Court Ural District dated November 10, 2017 No. F09-7345/17 in case No. A47-5169/2017).

In another case, the defendant only in cassation stated an argument about the plaintiff’s failure to comply with the claim procedure, although he took part in the consideration of the case in the courts of first and appellate instances. The Court of Cassation took this into account and indicated: “From the behavior of the defendant, there is no intention to voluntarily and promptly resolve the dispute out of court, therefore leaving the claim without consideration in this case will lead to unreasonable delay in the resolution of the dispute and infringement of the rights of the plaintiff” (resolution of the Arbitration Court of the Eastern Siberian District dated February 1, 2018 No. F02-7417/17 in case No. A69-5307/2016).

commercial disputes, corporate disputes, tax disputes, disputes over intellectual property, real estate disputes

Pre-trial dispute resolution in civil process is of utmost importance, as it is designed to resolve the conflict of the parties without going to court and using the coercive power of the state. In our article we will consider cases when such a settlement is mandatory, as well as the procedure for its implementation.

Pre-trial procedure for resolving a dispute in civil proceedings

The pre-trial procedure involves filing a claim or taking other actions to resolve a dispute without involving a court.

Pay attention! The claim procedure for resolving a dispute is mandatory in the following cases:

in their agreement, the parties established this procedure as mandatory;
this procedure is provided for by law.

So, for example, Art. 797 of the Civil Code of the Russian Federation establishes that a claim against a cargo carrier must be sent before filing a statement of claim. Moreover, only refusal (complete or partial) from satisfying the claim or ignoring it for deadline gives the right to bring a claim.

Important! A number of legislative norms require a written appeal to the other party under the obligation, but such a procedure is not directly called mandatory and stipulates further consideration of claims.

We are talking, in particular, about the requirement to pay borrowed funds (Article 810 of the Civil Code of the Russian Federation). Thus, the St. Petersburg City Court, overturning the decision of the Moskovsky District Court of St. Petersburg, indicated that the absence of a demand for repayment of the debt was wrongfully regarded by the latter as non-compliance with the pre-trial settlement of the dispute ( appellate ruling dated January 19, 2016 No. 33-437/2016).

The Moscow City Court came to a similar conclusion that a mandatory claim procedure for claims for loans is not provided for by law (appeal ruling No. 33-11395/2016 dated May 20, 2016).

Mandatory procedure for pre-trial settlement of disputes in the Civil Code of the Russian Federation and other laws

Civil Code of the Russian Federation, other codes and federal laws provide for a mandatory claims procedure when considering the following disputes:

on easement on land or buildings (Articles 274, 277 of the Civil Code of the Russian Federation);
amendment or termination of the contract (Article 452 of the Civil Code of the Russian Federation);
concluding contracts without fail (Article 455 of the Civil Code of the Russian Federation);
termination of the lease agreement (Article 619 of the Civil Code of the Russian Federation);
termination of a rental agreement and eviction (Article 687 of the Civil Code of the Russian Federation, Articles 35, 91 of the Housing Code of the Russian Federation);
cargo transportation (Article 797 of the Civil Code of the Russian Federation, Article 124 of the Air Code of the Russian Federation, Article 120 of the Railway Transport Charter);
change or termination of the alimony agreement (Article 101 of the RF IC);
transportation of passengers (Article 39 of the Charter of Road Transport and Urban Ground Electric Transport, Article 161 of the Code of Inland Water Transport);
payments under compulsory motor liability insurance (Article 16.1 of the Law “On compulsory insurance civil liability of owners vehicles" dated April 25, 2002 No. 40-FZ);
communication agreement (Article 55 of the Law “On Communications” dated July 7, 2003 No. 126-FZ);
tour packages (Law “On the Fundamentals of Tourism Activities in the Russian Federation” dated November 24, 1996 No. 132-FZ), etc.

Important! The claim must be made only in writing. In some cases, the law establishes a certain period of waiting for a response to a claim.

This period is counted:

from the moment of direct transfer of the claim to the authorized person of the addressee against a receipt indicating the date of receipt, position and surname of the recipient;
the date of delivery of the postal item to the counterparty, which is determined by the date stamped on the postal notification of delivery of the correspondence.

If there is no response to the claim within the established period, or in its absence within a reasonable time, or an answer is received that does not satisfy the party, it has the right to resort to judicial protection.

Claim procedure for resolving a dispute in accordance with the Code of Civil Procedure of the Russian Federation

For cases where the law establishes a mandatory pre-trial procedure for resolving a conflict, the Code of Civil Procedure of the Russian Federation contains a number of rules that should be followed by both the court and the participants in the case.

First of all, in the text of the statement of claim, the plaintiff should tell about the attempts he has made to satisfy his demands before going to court (Article 131). In addition, the claim must be accompanied by written evidence of compliance with the mandatory claim procedure (Article 132). These may include the text of the claim along with a postal receipt for its dispatch or a mark of delivery directly to the defendant.

Failure to comply with the above requirements is grounds for returning the claim on the basis of Art. 135 or leaving it without consideration on the basis of Art. 222.

Conclusion! Thus, the above norms are aimed at stimulating the parties to resolve the dispute among themselves independently (and sometimes with the help of intermediaries), without resorting to judicial authorities.

Important! Compliance with pre-trial procedure must be supported by adequate evidence. Thus, the Voronezh Regional Court rejected the plaintiff’s argument that the law does not directly provide for sending a claim by registered mail with return receipt requested. The court did not find in the register of postal items submitted by the plaintiff information about sending the claim to the defendant (appeal ruling dated 05.05.2016 No. 33-3066/2016).

It is also important to distinguish between filing a claim as a method of pre-trial settlement and sending a notice to community members in accordance with Art. 181.4 of the Civil Code of the Russian Federation, which the plenum of the Supreme Court of the Russian Federation was informed about in its resolution dated June 23, 2015 No. 25 (clause 115). The key here is the fact that the letter is not sent to the defendant, but to other interested parties.

Mediation is a procedure for alternative dispute resolution in civil proceedings

Mediation can be considered as a method of pre-trial or out-of-court conflict resolution. Although it is possible to conduct mediation in parallel with court hearing, but the court does not participate in this procedure: it can, for example, declare a break if the parties want to complete the mediation negotiations.

Important! This procedure is carried out if there is mutual consent of the disputants in accordance with the Law “On an alternative dispute resolution procedure with the participation of a mediator (mediation procedure)” dated July 27, 2010 No. 193-FZ.

Pay attention! Mediation should be distinguished from facilitating the reconciliation of the parties by the court, although the purpose of both activities is the same. In the extrajudicial process under consideration, the mediator acts as a reconciliation element - a mediator, who should not have anything to do with the judicial system or with any of the parties. Acting impartially, this entity carries out rather organizational functions, creating conditions for the parties to search for alternative solutions to the problems facing them.

Mediation is used if the parties:

made a mediation clause on the use of such a procedure in a written transaction even before the dispute arose;
entered into an agreement to use mediation after a dispute arose.

The parties may prescribe a specific mechanism for its implementation in the mediation agreement. The mutual decision of the parties to introduce mediation gives the court the right in accordance with Art. 169 of the Code of Civil Procedure of the Russian Federation to postpone the consideration of the case for up to 60 days. Here we note that, according to Art. 202 of the Civil Code of the Russian Federation, if the parties decide to conduct mediation, the limitation period is suspended for the entire duration of its validity.

The reached compromise solution of the conflicting parties is formalized in the form of a mediation agreement.

In conclusion, we emphasize that pre-trial procedures aimed at resolving a dispute can be applied compulsorily or voluntarily. Cases where compliance with mandatory pre-trial dispute resolution is required must be expressly stated in the law. The claim procedure involves sending a written demand from one of the parties to the counterparty, while mediation means coordinated and voluntary actions of both parties.