How to draw up a statement of refusal of a claim in a civil process - sample and rules

Refusal of the claim is allowed to use the provisions of the Civil and Arbitration Procedure Codes.

In Art. 39 of the Code of Civil Procedure states: the plaintiff may withdraw the previously stated claims by applying to a court of general jurisdiction. But this is done in accordance with the provisions of the law and respecting the rights of other people. Otherwise, the court will not accept the application.

APK in Art. 49 indicates: withdrawal of the claim in the arbitration process is also possible. The applicant in the 1st and 2nd instances may withdraw his claims in whole or in part - until the end of the process. The grounds for non-acceptance are similar to the Code of Civil Procedure.

motives

The plaintiff or his representative may file an application for waiving the claim. Moreover, in the power of attorney, along with other powers, the powers of the representative on this particular issue must certainly be specified. The request may be announced in the form of an oral petition during the court session - it is recorded in the minutes. The applicant must affix his signature (Article 173 of the Code of Civil Procedure). And you can also submit a written request to the office - she makes fun of the case with a note in the protocol.

Note! When the waiver of claims is declared directly at the hearing, the judge is obliged to explain to the plaintiff what will follow.

Claims are usually withdrawn when:

1. The opposing party terminated the actions that were the basis of the dispute.
2. The defendant satisfied the claims in full and compensated the costs of the court.
3. The parties signed a settlement agreement.
4. Circumstances leading to the irrelevance of disputes are found.
5. The applicant acknowledged the unfairness of his claims.
6. There are other reasons.

How to issue

There is no approved form for filing a withdrawal of claims - see a sample below. When writing it, one must be guided by Article 131 of the Code of Civil Procedure, Art. 125 APK.

Initially indicated:

• The name of the court and its address.
• Details of the plaintiff and defendant (full names, addresses, telephones).

A little lower right:

• Case number.
• Surname of the judge.

In the center is the title of the document: "Statement of Waiver of Claims."

The text states:

• Concise content of the original claims and their reasons.
• A clear description of the reason for withdrawing the claim.
• An indication of the knowledge of the consequences.

Finally:

• Request for dismissal.
• Signature.
• Date of.

What are the consequences

• The court is obliged to check the claim for compliance with the laws and interests that it is called upon to protect.
• When violations are found, a ruling is issued, including the grounds for not accepting the application. It is handed over or sent to the applicant within 5 days. All documentation in the case is also sent to the plaintiff (Article 134 of the Code of Civil Procedure).
• When the plaintiff's waiver of the claim is accepted, a decision is made about this in the deliberation room. The judge cannot be limited to making a request in the protocol.
• Thereafter, based on Art. 220 Code of Civil Procedure, the judge closes the case.
• The second time it is impossible to resort to going to court on the same issue, by the same people, which is what the definition says (221 CPC).
• According to the 101st article. CPC in case of withdrawal of claims, the legal costs of the plaintiff are not compensated by the defendant. The plaintiff shall pay the costs to the defendant.

Note! There are situations where the request is accepted and the case is closed despite violations. At the same time, a definition is issued, indicating the need to eliminate them.

Application Rejection Examples

In order to understand in which cases a petition for withdrawal of claims is not accepted, it is advisable to consider examples from practice.

Example 1. Violation of the law

Court of General Jurisdiction - Case No. 33-129/2015 dated 10.02. 2015, Armed Forces of the Republic of Tyva.

The appeal determined: decision 1 inst. note, the case is returned for a new consideration.

In the 1st inst. by proxy of citizen T., her representative O. declared under a loan agreement. He then waived claims for a refund during the meeting. The case was dismissed on this basis.

In the 2nd instance, where T. filed, it was noted that the decision was made in violation of the Code of Civil Procedure. Although the representative had a power of attorney, including the withdrawal of claims.

Reasons:

• The minutes do not reflect the reasons for the request.
• It does not contain the signature of a trusted person.
• The consequences of the refusal of the claim are not explained.

Example 2: Rights infringement

Arbitration Court - Case No. A40-50193 / 11-46-417 dated 12/28/2012, FAS of the Moscow District.

In an LLC there is a corporate conflict between the founders. One of the parties filed a lawsuit to resolve the dispute on exclusion from the register of participants, and then - withdrawal of requirements.

Ruling: Determination to dismiss the case in 1 inst. cancel, the appeal decision on the non-acceptance of the petition is upheld. Reason: violation of the interests of the other party to the conflict, which is unacceptable.

In arbitration proceedings, the withdrawal of a claim is governed by articles: 49, 111, 150 and 151 of the APC.

From what has been said, it is clear that the rejection of initial claims requires a balanced approach, specific knowledge and clear actions. Therefore, before making a final decision, one should delve into the materials of the case and correctly assess the consequences.